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of tbc 
laniverdit^ of Misconsin 




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QUESTIONS OP MORAL THEOLOGY 



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QUESTIONS OF MOBAL THEOIOGT 



BY 
REV. THOMAS gLATER, S.J. 

AUTHOR OP ''MANUAL OP MORAL THEOLOGY FOR BNGUSH 
SPBAKINO COUNTRIBS.** "XBASES OF CONSCIBNCB.'* BTC 



NEW YORK, CINaNNATI. CHICAGO 

BENZIGER BROTHERS 

PBDfTBSS TO TBB i PUBUSHSM OF 

BOLT APOmOLIC B£B I BBMUGBR'8 MAOACOia 

1915 



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Jnqirisiti tmtMt 

JOSEPH BROWNE, S.J. 

Pra^. Prw. Angl, 

October 99» 1914. 



Jnqirisiti tmtMt 

REMIGIUS LAFORT, S.T.D. 

Ceiuor Librorum 

Nkw Yoiii:» Jurawy 10» 191^. 



OomtOR; ins, BT 



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259414 
OCT 241922 

a 



CONTENTS 

The Just Price 15 

Value in Moral Theology and Political Economy • • 33 
Unearned Increment and Title by Accession • • • 54 

Ownership and Bailway Fares 68 

Liberalism and Usury 78 

The Sum Required for a Grave Sin of Theft ... 99 

The Theology of Stolen Goods 116 

Secret Commissions in Trade 130 

Deals in Options and Futures 145 

The Moral Aspect of Stockwatering'' 159 

Bankruptcy and Conscience 176 

Modem Sociology 191 

English Socialism and Keligion 233 

Eugenics and Moral Theology 252 

Civil Law and Conscience 272 

Questions Concerning Intention 289 

Dr. McDonald's ''Principles of Moral Science" . . 306 

Scruples 329 

The Doctrine on Sacrilege in Moral Theology . . . 343 

Is an Act of Contrition Difficult! 355 

Bepetition of Extreme Unction 368 

Dr. Bichard Hall's Theory of Morals 388 

The Task of Liberal Theology 408 



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PREFACE 

Thb doctrine taught by the Catholic Church is 
vitally necessary for the modern world. We have all 
been forced to see as with our own eyes what even the 
highest human culture becomes when it is deprived 
of the salt of Christian teaching. During the years 
in which I was engaged in teaching Moral Theology 
this truth was constantly brought home to me. From 
time to time I wrote down my thoughts on some par- 
ticular question of Moral Theology and sent the re- 
sult to one of the Catholic magazines. The chief 
portion of this book consists of such articles. I hope 
that they will illustrate the truth which I have just 
stated, and that they will help to bring back to public 
knowledge truths that should never have been for- 
gotten. Other articles treat of questions which were 
either specially difficult, or which formed subjects of 
controversy, but all of them treat of matters of im- 
portance, unless I am mistaken. They are here re- 
produced not only for the clergy, but for the intelli- 
gent laity, both Catholic and non-Catholic. 

My thanks are due to the proprietors of the Irish 
Ecclesiastical Record, the Irish Theological Quar- 
terly, and of the American Ecclesiastical Review for 
permission to republish the articles which belong to 
them respectively. 



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QUESTIONS OF MORAL 
THEOLOGY 

I 

THE JUST PRICE 

From many sides there are indications that the gos- 
pels of revolt are being found wanting by experience 
and that a reaction in favor of older and saner doc- 
trines has set in. As an example of this movement 
we propose in this paper to take the doctrine of the 
just price of services and commodities. It will be 
sufficient for our purpose to indicate the salient fea- 
tures of the revolt and the return to the sounder 
views which* were once prevalent. We may thus per- 
haps be able to help things to move in the right direc- 
tion. 

Until comparatively modem times it was held uni- 
versally that societies of men are chiefly held together, 
by the virtues of justice and charily. Justice espe- 
cially was considered the solid foundation of States^ 
without which it was impossible for them to prosper 
or even to remain stable and permanent. Whatever 
may have been the practice in particular cases and at 
particular times the ideal at least was always upheld 
that justice must regulate the dealings of rulers with 
the governed, and the mutual relations of the gov- 

16 



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16 THE JUST PRICE 

emed among themselves. The doctrine concerning 
the nature of justice was that of Aristotle^ who 
taught that it consists in a mean between two ex- 
tremes; like other moral virtues. Just as liberality 
is a mean between the two vices of stinginess and 
prodigality, so justice is a mean between excess and 
defect Justice, however, differs from other virtues 
in this — that while the mean in other virtues is a 
mean between two vicious habits in the virtuous man, 
justice has also for its mean the debt due to some- 
body else. Other people have certain definite rights 
— the right to live without let or hindrance, the right 
to protection at the hands of the public authority, the 
right to have and to enjoy what belongs to them — 
certain definite rights arising from contract. Justice 
requires that those and all other rights should be re- 
spected, that what is due to another should be ren- 
dered unto him. Not more than is due nor less, but 
just what is due. Justice, therefore, consists in an 
equality, a balance between what a person has a right 
to and the satisfaction of that right on the part of 
others. As long as each one gives to all others what 
they have a right to, justice is observed, no one has a 
legitimate ground of complaint, all are satisfied and 
contented, the State rests in security on the peace and 
concord of its citizens. 

The justice that governs the relations of individuals 
among themselves was called corrective justice by 
Aristotle because it corrected unjust inequalities by 
making restitution for violations of right. It was 
called commutative justice by the schoolmen because 
it had to do chiefly with buying and selling and other 



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THB JUST PRICE 17 

contracts or exchanges. Justice regulates such trans- 
actions^ and consists in this — that if a man buys a 
house he is in possession of the same value after the 
completion of the bargain as he was before. If jus- 
tice has been observed he has not given too much 
for the house nor too little. The mean has been ob- 
served, and justice has been done. " But when," says 
Aristotle, "by buying and selling, men have got 
neither more nor less than they had at first, but ex- 
actly the same, then they say that they have their 
own, and have neither lost nor gained. And hence 
corrective justice is a mean between the gain and the 
loss which are produced not willingly, but uninten- 
tionally, and is such that each party has the same both 
before the transaction and after it" * 

Of course the great philosopher was not so foolish 
as to suppose that nothing whatever is gained by the 
contract. If that were the case there would be no 
motive for making the exchange at all. As he shows 
elsewhere,* Aristotle was fully aware of the two kinds 
of value which every commodity has in society, the 
value in use and the value in exchange. A man who 
sells wine which he does not want, and which he can- 
not use for money which he does want, makes a gain 
as to the value in use ; but if he only got the just price 
he only got the equivalent of his wine as far as the 
value in exchange is concerned. In order that ex- 
change may be possible and that commodities may 
have exchange value, some sort of society must have 
been constituted. As Aristotle says: "Now it is 
plain that barter could have no place in the first com- 

iBth4o8, y^ 4. 2 Pontics, I., a 9. 



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18 THE JUST PRICE 

mnnity, that is to say^ in the honsehold; but must 
have began when the number of those who composed 
the community came to be enlarged; for the former 
of these had all things the same and in common; but 
those who came to be separated had in common many 
other things which both parties were obliged to ex- 
change as their wants arose/' ^ 

Value in exchange^ then^ is given to commodities by 
the fact that there are other men who are willing and 
able to give other commodities of value for them. 
How much they are willing to give will not depend 
upon the value in use which the commodity may have 
for themselves or its present owner, or for any par- 
ticular individual. If one be starving a loaf of bread 
will be worth more to him than all the gold of Midas, 
but its value to him will not measure its value in 
exchange. This value in exchange will be determined 
by what the members of the community at the time 
f^re prepared to give for a loaf of bread. It will be 
determined by the social estimate of its utility for the 
support of life and its scarcity. It will not depend 
upon its intrinsic perfection, else a mouse would be 
more valuable than the com which it eats. It will 
depend on its capacity to satisfy the wants and de- 
sires of the people with whom commercial relations 
are possible and practicable. 

All this, which is according to the express teaching 
of the great Greek philosopher, shows that Aristotle 
considered it a matter of justice to keep to what we 
call a fair and reasonable price in buying and selling. 
Then, as now, traders were apt to evade this ethical 

nPoUtica, I., e 9. 



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THB JD8T PRICE 19 

law, and on that account trade and traders were held 
in small esteem by respectable men. Plato only ad- 
mitted them into his Republic because he knew that 
they were necessary, but in an interesting passage he 
tells us what should be done to prevent traders doing 
injury to the commonwealth and to prevent their sor- 
did occupation injuring their own characters. " And 
therefore/^ he says, "in respect of the multifarious 
occupations of retail trade, that is to say, in respect 
of such of them as are allowed to remain, because they 
seem to be quite necessary in a State — about these 
the guardians of the law should meet and take coun- 
sel with those who have exi>erience of the several 
kinds of retail trade, as we before commanded, con- 
cerning adulteration (which is a matter akin to this) , 
and when they meet they shall consider what amount 
of receipts after deducting expenses will produce a 
moderate gain, and they shall fix in writing and 
strictly maintain what they find to be the right i>er- 
centage of profit; this should be done by the warders 
of the agora, and by the warders of the city, and by 
the warders of the country. And so retail trade will 
benefit every one, and do the least possible injury to 
those in the State who practise it." * 

In the third book of his De Officiis^ Cicero has a 
very interesting discussion on certain ethical ques- 
tions connected with trade. He tells us that they 
were cases of conscience discussed among the Stoics. 
One is whether a com merchant who is selling his 
com at famine prices, but who knows that abundant 
supplies are close at hand and will shortly arrive, is 

4Lair<, p. 491. sC. 12. 



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20 THE JU8T PRICE 

bound in conscience to make the fact known to the 
buyers. Another is whether the owner of an insani- 
tary house which he wishes to sell is bound in con- 
science to make known the defective drainage to in- 
tending buyers. Cicero himself takes the strict view 
in both cases. He says: ^^That com merchant, 
then, seems to me to be bound not to practise con- 
cealment on the Bhodians, nor this house-seller on the 
purchasers. For it is not practising concealment if 
you should be silent about anything; but when for 
the sake of your own emolument you wish those, 
whose interest it is to know that which you know, to 
remain in ignorance. Now, as to this sort of con- 
cealment, who does not see what kind of thing it is, 
and what kind of a man will practise it? Certainly 
not an open, not a single-minded, not an ingenuous, 
not a just, not a good man; but rather a wily, close, 
artful, deceitful, knavish, crafty, double-dealing, 
evasive fellow. Is it not inexpedient to expose our- 
selves to the imputations of so many vices, and even 
more?*' 

I quote these words not because I think Cicero's 
opinion on this question the right one, but because 
the passage shows the attitude of a Roman gentleman 
and of one who took a keen interest in ethical ques- 
tions with regard to fair dealing and the just price 
of commodities. If Cicero and those to whom he 
so confidently appealed had in their minds no defi- 
nite standard of what was a just price to give for a 
commodity the whole passage is meaningless. 

St. Thomas Aquinas and Catholic theologians gen- 
erally have followed and appropriated the Aristo- 



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THE JUST PRICE 21 

telian doctrine on jostice and on the just price. In 
the question of the Summa^ where St Thomas pro- 
fessedly treats of the just price of commodities, he 
quotes both Aristotle and Cicero, and by ^ving as 
the reason for his decision the great and primary 
maxim of the natural law — Whatsoever you would 
that men should do to you, do you also to them — he 
shows that, according to his ideas, the question of the 
just price was one of natural law and natural rea- 
son. The words, indeed, were uttered by Our Lord, 
but that fact does not make them merely positive 
precept; much of Our Lord's teaching is also that of 
natural reason. It may be added that common sense 
and English law both uphold the doctrine of the 
just price. Buyers of commodities who are fit to 
go to market know what the fair price is of the arti- 
cles which they wish to purchase, and sellers know 
when they are giving fair value for the money which 
they receive. The Sale of Goods Act, 1893, sec. 8, 
sub-sec. (2) prescribes: " Where the price is not de- 
termined in accordance with the foregoing provisions, 
the buyer must pay a reasonable price. What is a 
reasonable price is a question of fact dependent on 
the circumstances of each particular case.'' This 
obviously supposes that there is such a thing as a 
reasonable price for goods — a price, that is, which 
right reason approves in the case. Price in other 
words is not something which is altogether indeter- 
minate, subjective, and arbitrary. There is a price 
for everything that <!omes into commerce, not neces- 
sarily fixed and determined to the last farthing, but 
• 2-2, q. 77, a. 1. 



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22 THB JUST PRICE 

ascertainable within fairly definite limits. It is the 
reasonable price^ not too high nor too low, the mean 
between excess and defect, the just price, the fair 
equivalent in money for the goods. What that price 
is is a question of fact, says the law — a question of 
fact which depends upon the circumstances of each 
individual case, and which can be settled without 
much difficulty by a jury of honest and competent men. 

All this is but the brief exposition of the teaching 
of Catholic moral theology on the famous question 
of the just price — teaching which St. Thomas and 
the scholastics derived from Aristotle's doctrine on 
justice, and which they handed down to their mod- 
em successors. It was necessary to be thus explicit 
in order to have before our eyes a standard by which 
to judge the worth of the assertions of the liberal 
school of political economy. 

According to the teaching of this school a seller al- 
ways tried to sell in the dearest market and a buyer 
tried to buy in the cheapest. The price below which 
the one would not sink and that above which the other 
would not rise was fixed by the subjective and indi- 
vidual valuations of the utility of the goods to the 
seller and buyer respectively. The actual price at 
which the goods were sold depended upon the play of 
supply and demand at the place and time in ques- 
tion. Competition among buyers and sellers and of 
buyers against sellers settled the actual price which 
the goods fetched. The law of supply and demand 
was a law of nature, as inevitable as nature's phys- 
ical laws, and it was as useless for the State to at- 
tempt to interfere with economic laws of this kind 



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THB JUST PRICE 28 

as with the law of gravitation. Workmen were a 
necessary factor of production, an essential portion 
of the productive machinery, and the price of their 
labor was regulated by the same great law as that 
which r^^lated the price of the raw material which 
thqr worked up into saleable goods. The business 
man here, too, bought in the cheapest market and 
sold in the dearest ; the price in the one case was what 
he was compelled to give, in the other it was what he 
could get The old scholastic theory of the just price 
of commodities was hopelessly antiquated and even 
absurd. Even the historical school of economists 
followed the prevailing doctrine on this point Dr. 
W. Cunningham writes : ^^ In accordance with cur- 
rent modes of thought [the scholastic theologians] 
tried to determine an ideal standard which should be 
realised in particular transactions, and sought for 
a definite conception of a ^ just price ' ; the practical 
enquiries then resolved themselves into means for dis- 
covering the just price of each particular thing. 
From the modem point of view this whole quest was 
quite chimerical; prices are always fluctuating, and 
must flrom their very nature fluctuate. • . . We know, 
too, that the commodity used for money must vary in 
value flrom time to time, and that therefore there 
must be continual fluctuations not only in values 
but in prices as well. The attempt to determine an 
ideal price implies that there can and ought to be sta- 
bility in relative values and stability in the measure 
of values — which is absurd. 

^ The medieval doctrine and its application rested 
upon another assumption, which we have outlived. 



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24 THB JUST PRICE 

Value is not a quality which inheres in an object, 
BO that it shall have the same worth for everybody; 
it arises from the personal preferences and needs of 
different people, some of whom desire a given thing 
more and some less, some of whom want to use it in 
one way and some in another. Value is not objec- 
tive — intrinsic in the object — but subjective, vary- 
ing witii the desires and intentions of the possessors 
or would-be possessors; and because it is thus sub- 
jective there cannot be a definite ideal value, which 
every article ought to possess, and still less a just 
price as the measure of that ideal value." ^ 

It is obvious that when Dr. Cunningham wrote this 
he had no true conception of what the doctrine of the 
just price was and is. All that that doctrine asserts is 
that there should be and that there is an equivalence 
in social value between a commodity and its price at a 
certain time and in a certain place; it says nothing 
whatever about the stability or permanence of price 
at different times and at diff^*ent places. While 
maintaining that the just price does not depend on the 
valuation of the individual buyer or seller, the 
medieval doctors did not dream of making it in- 
trinsic to the object They quoted with approval St. 
Augustine, who centuries before had pointed out that 
though mice and fleas are more perfect things in the 
order of nature than bread and money, yet people set 
a higher value on the latter.® They knew fully well 
that value is not intrinsic to the object in the sense 

7 An Essay on Western Civilization, by W. Gunningfaam, D.D., 
p. 78. 
• De civUiUe Dei, XI., c 14. 



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THE JUST PBIOB 26 

intended by Dr. Cnnningham, but that it largely at 
least depends on the wants and desires of men, 
though, of course, there should be something in the 
object to rouse those desires and satisfy those wants. 

Even Professor Ashley falls into the same mistake. 
" With us/' he says, " value is something entirely sub- 
jective; it is what each individual cares to give for a 
thing. With Aquinas it was something objective; 
something outside the will of the individual pur- 
chaser or seller; something attached to the thing it- 
self, existing whether he liked it or not, and that he 
ought to recognize." • 

Professor Ashley's treatm^it of the doctrine of St 
Thomas is sympathetic, but in his failure to grasp 
some of its essential features he shows how difficult 
it is without special training to understand scholas- 
tic theology. Still less can another assertion of these 
two scholars be admitted. In the last edition of his 
Growth of English Industry and Commerce, Dr. Cun- 
ningham has the following passage: — ^^The whole 
conception of a just price appears to be purely Chris- 
tian; according to Professor Ashley, who has writ- 
ten an admirable exposition of the whole subject, it 
is unknown to the civil law, and had as little place 
in Jewish habits as it has in modem society ; but it 
really underlies a great deal of commercial and gild 
regulation, and it is constantly implied in the early 
legislation on mercantile affairs." ^^ Although in the 
text just quoted Dr. Cunningham asserts that the 

9 Introduction to BngHsh Boonomio Historp and Tkearf, l^ p. 
140. 
fLoo. cU., I., 11.262. 



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26 THE JUST PRICE 

whole conception of a just price appears to be purely 
Christian, yet in a note to the passage he admits that 
it is partly based on Aristotle. As a matter of fact 
it was altogether based on Aristotle. It is an axiom 
with the scholastics that Christianity contains no 
directly moral precepts which do not belong to nat- 
ural law except those which relate to Faith and the 
Sacraments. They certainly regarded the doctrine 
of the just price as part of the doctrine on Justice, 
and Justice is certainly a virtue of the natural law. 
If St Thomas quotes the words of Our Lord — 
Whatsoever you would that men should do to you, 
do you also to them — he merely makes use of these 
words to enunciate the first great principle of the 
law of nature, a principle known to Moses as it was 
to Confucius, the fundamental axiom of all sound 
ethics. Professor Ashley did, indeed, at one time 
think that the phrase — justum pretium — first oc- 
curred in St. Augustine, but in a note at the end of 
the volume he shows that he had detected his mistake 
before his book was published. The phrase occurs 
twice in the laws of Diocletian and Maximian, which 
were inserted in the Code,^^ and the idea as distinct 
from the exact phrase is one which belongs to justice 
and human reason, as Aristotle and Cicero show. 

Within the last few years many signs have appeared 
of what is really a return, I will not say, to the 
scholastic, but to the true doctrine of value and price. 
Dr. Cunningham himself gives evidence of this. In 
his Essay from which we quoted above he admits that 
^^ modern moral feeling does not sensibly differ from 

11 Oodem, IV., 44, 2 and & 



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THE JUST PRICE 27 

that of medieval times in the desire, if it were possi- 
ble, to interfere with the action of any dealers who 
are able to enrich themselves through the necessities 
or the ignorance of others, and to gain at their ex- 
pense." ^^ Still more satisfactory is what he has in 
the last edition of the Growth of English Industry: 
^^ Common estimation is thns the exiK>nent of the nat- 
ural or normal or just price according to either 
the medieval or the modem view; but whereas we 
rely on the higgling of the market as the means of 
bringing out what is the common estimate of any ob- 
ject, medieval economists believed that it was possible 
to bring common estimation into oi>eration before- 
hand, and by the consultation of experts to calculate 
out what was the right price." " A belief, it may be 
added, which is shared by the framers of English law, 
as we have seen, and by business men to this day. 

Henry Sidgwick, in an article contributed by him 
to Sir R. H. Inglis Palgrave's Dictionary of Political 
Economy, writes : — " So far as it has attempted to 
supply this need, the teaching of political economists 
has generally pointed to the conclusion that a free 
exchange without fraud or coercion is also a * fair ' 
exchange. It is, however, doubtful how far this in- 
terpretation has ever satisfied the common moral con- 
sciousness, when cases are considered in which one 
party to the exchange is found profiting by the ig- 
norance or distress of the other. At any rate it has 
been widely maintained that a strictly comi>etitive 
exchange does not tend to be really * fair ' — some say 
cannot be really * free * — when one of the parties is 

IS Page 80. i* Page 258. 



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28 THE JU8T PRICE 

under preBsnre of urgent need. . . • Many who are 
not socialists, nor ignorant of economic science, have 
been led to give some welcome to the notion that the 
ideally * fair * price of a productive service is a price 
at least rendering possible the maintenance of the 
producers and their families in a condition of health 
and industrial efficiency .'' ^* 

The doctrines of the liberal school of English po- 
litical economy were never so widely accepted on the 
Continent as they have been in England, and it is 
on the Continent that their narrow doctrine about 
price has been most vigorously and successfully as- 
sailed. M. A. de Tarde, an advocate of the Court 
of Appeal at Paris, published his interesting Work 
UId6e d/w Juste Prix in 1907. It is a history and 
criticism of opinions not from the theological but 
from the economic point of view, and perhaps, the 
more valuable to us on that account Price, of 
course, is merely the measure in money of the value 
of a commodity, and M. de Tarde shows that the 
various theories of value, sometimes even in spite of 
the protestations of their exponents that ethics had 
no place in such questions, involved also an idea of 
justice. With the liberal school competition was sup- 
posed to settle what a fair equivalent for any com- 
modity was in the circumstances, while Marx and 
the socialists maintained that the laborer has a right 
in justice to all the wealth that is produced, for aU 
wealth is the produce of labor. Recent economic 
theory is adverse to both views, and shows a marked 

i« S. ▼., PoUiioal Economy and Ethics. 



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TEB JUST PRICE 2A 

tendency to return to earlier theories. As M. de 
Tardesays: 

^^Mais, si le XIX* Si^Ie parait a'Stre inspire, 
pendant longtemps^ de ce lib6ralisme, et s'Stre ab- 
stenn de faire triompher dans la r6alit6 nn ideal 
d^fini de justice) cependant, F^tat present des doc- 
trines et des moeurs semble faire retour k des con- 
ceptions plus proches, par certains c6t63, de eelles 
qui avaient cours k P^poque mMi^vale. Les dangers 
que la liberty de I'usure a causes dans FEurope c^^ 
trale et orientale, out ^tk assez grands pour induire 
la legislation allemande et autrichienne k revenir &k 
arri^re et k faire renaitre le d^lit d'usure. La l^gis** 
lation anglaise les a suivies ces temps derniers. Les 
autres nations conservent pr^eusement leur limita- 
tion l^le du taux de PinterSt. Enfln^ le recent code 
allemand de 1900 cr^ de toutes pieces une thtorie 
g^n^rale sur la l^on par inequivalence dans les con- 
tratSy qui consacre le fondement de Pid^ d'un juste 
prix. Ces faits sont significatifs. La croyance que 
le prix le meilleur est le prix de concurrence, parait 
fortement ^branlte. Tout le mouvement si puissant 
des conditions industrielles, tant ouvri^res que pa- 
tronales {trusts) ^ proteste contre elle. Or, le r^;u- 
lateur de la concurrence supprim^, il faut faire appel 
k de nouveaux principes, et, dans ce d^sarroi, les doc- 
trines id^es de justice paraissent devoir prendre une 
nouvelle force'' (p. 66). 

We quoted H. Sidgwick above as testifying to a 
common conviction that the workman has a right to 
a living wage which will keep him in decent comfort. 



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30 THB JUST PR109 

ThiBy too, is a return to Catholic principles so beauti- 
fully set forth by Leo XIII in his encyclical on the 
condition of labor. On this point M. de Tarde says : 
^^ A Poppos^ de la conception des Economists, celles 
de saint Thomas et celle des trade-unionistes anglais 
demandent le fair noage, le Uvmg wage. C'est de ce 
cdt6 \k que penche la conscience modeme'' (p. 256). 
Perhaps the most interesting portion of his book 
is where M. de Tarde outlines the theory of price 
which is coming into vogue. According to this 
theory, value is not something which is inherent in 
an object, it is not crystallized labor, as Marx and his 
followers asserted. Neither is it, ordinarily at least, 
the result of agreement arrived at through tiie compe- 
tition of buyer and seller. Values and prices are not 
settled by individuals, still less are they a compro- 
mise brought about by competition between the dif- 
ferent values in use of buyer and seller. Exchange 
values are settled in society and by society; they ex- 
press the social judgment as to the equivalence in 
social value between a commodity and its price. ^^ Au 
contraire les jugements de valeur, qui influeront sur- 
I'tehange, seront plus habituellement d'une part, celui 
que I'acheteur suppose chez son, vendeur; d'autre part, 
celui que son vendeur suppose chez son aoheteur. Ce 
sont des jugements moyens de vendeurs et d'a<;heteurs 
qui sont pris en consideration, c'est-k-dire des juge- 
ments bas69 sur des dteirs moyens et des croyances 
moyennes. Ainsi, la vialeur qui sert de fondement le 
plus souvent k la pretention de chaque 6changiste, 
c'est la valeur collective, celle qui est commune k 
toute un groupe. C'est ceHe-Ui, notamment, que le 



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THB JV6T PRICE 31 

vendenr pr^voit et calcnle avant de fixer son prix de 
vente, et^ s'il a int^r6t maintes fois k faire descendre 
ce prix jnsq'au minimnin du coflt, c'est qa'ainsi^ en 
abaissant le jngement de valeur moyen oar leqnel il 
table, il s'adresse k nn plus grand nombre de d^drs, il 
6tend sa clientele.'* ^^ 

If we enquire how the coUectiye judgment concern- 
ing the yalue of a commodity is formed, we are en- 
tering on a question of social psychology. Groups 
and societies of men have their special desires, preju- 
dices, opinions, like individuals. They express their 
opinion in a variely of ways as to the value of a com- 
modity, as to the price of a horse, for example. That 
collective judgment gives exchange value to commodi- 
ties, and it is its measure. 

The same view has recently been defended in Ger- 
many in a pamphlet published last year by Dr. Lif- 
schitz. It is, of course, the doctrine of the common 
estimation, the cause and measure of value according 
to the scholastics. But it is noteworthy that it is 
not, as Dr. Cunningham said in the passage quoted 
above, the result of the higgling of the market; it 
exists already and is presupposed while the higgling 
takes place; it guides and directs it, as M. de Tarde, 
resting on experience and observation, explains. 
There is reason to rejoice at the return of sounder 
views which we have tried to show and illustrate, not 
simply because these views are those of the scholastic 
theologians, but because they are truer and more 
wholesome than those which they tend to supplant. 
One theory favored usury, sweating, commercial dis- 

isA. de Tirde, p. 247. 



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32 T^B JV8T PRICE 

honesty, and oppression of the poor; while another 
formed the central doctrine of modem socialism. 
The true doctrine of value and price rests on justice, 
the only firm foundation of States. 



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II 

VALUE IN MORAL THEOLOGY AND 
POLITICAL ECONOMY 

The price of a thing is the expression in money of 
its value. But what is value? What is it that makes 
a pair of boots sell for sixteen shillings in a certain 
place on a fixed day? The question is one of primary 
importance in the science of Political Economy. 
Jevons * quotes with approval the following words of 
Mill: — 

Almost every speculation respecting the economical in- 
terests of a society thus constituted, implies some theory 
of value; the smallest error on that subject infects with 
corresponding error all our other conclusions; and any- 
thing vague or misty in our conception of it, creates con- 
fusion and uncertainty in everything else. 

The theory of value is picturesquely said by a for- 
eign writer to be the dragon which guards the en- 
trance to economic science; while another declares 
that he who understands value, understands half of 
the difficulties of the science of Economics.^ If the 
notion of value is fundamental in Economics, it is of 
great importance, to say the least, in Moral Theology, 
and particularly in questions concerning justice and 

1 Theory of Political Economy, p. 80. 
tC. Antoine, S.J., Economie SooiaJef p. 253. 

33 



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34 VALUE IN MORAL THEOLOGY 

contracts. It may be of interest to inquire what 
economists have to say on a subject which specially 
belongs to their province, and to compare it with the 
received doctrines of Moral Theology. According to 
a recent writer, economists have shown the teaching 
of theologians on the point to be chimerical and ab- 
surd: and as I propose to make the words of this 
writer the basis of my remarks, I will quote him at 
length: — 

In modem times the form of economic doctrine has been 
affected by the fact that it has been so much discussed by 
men who were accustomed to deal with physical and mathe- 
matical problems, and who brought their habitual methods 
of reasoning to bear on the phenomena of supply and de« 
mand* In a similar fashion the economic doctrine of the 
thirteenth century in Christendom was affected, as far as 
its form was concerned, by the engrossing studies of the 
time ; economic problems were discussed by men who were 
habituated to the methods of metaphysics. In accord- 
ance with current modes of thought, they tried to deter- 
mine an ideal standard which should be realized in par- 
ticular transactions, and sought for a definite conception 
of a **just price*'; the practical inquiries then resolved 
themselves into means for discovering the just price of 
each particular thing. From the modern point of view 
this whole quest was chimerical: prices are always fluc- 
tuating, and must, from their very nature, fluctuate. Ac- 
cording to the ** plenty or scarcity of the time'' there will 
be great differences in the quantities available, and, there- 
fore, in the relative values of wheat, cloth, coal, and com- 
modities of every sort. We know, too, that the commodity 
used for money must vary in value from time to time, and 
that, therefore, there must be continual fluctuations not 
only in values but in prices as well. The attempt to de- 
termine an ideal price implies that there can and ought 



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ASD POLITICAL ECONOMY 35 

to be stability in relative valnes, and stability in the meas- 
ure of values, which is absurd. 

The medieval doctrine and its application rested upon 
another assumption, which we have outlined. Value is not 
a quality which inheres in an object, so that it shall have 
the same worth for everybody ; it arises from the personal 
preferences and needs of different people, some of whom 
desire a given thing more and some less, some of whom 
want to use it in one way and some in another. Value is 
not objective — ^intrinsic in the object — ^but subjective, 
varying, with the desires and intentions of the possessors 
or would-be possessors; and because it is thus subjective, 
there cannot be a definite ideal value, which every article 
ought to possess, and still less a just price as the measure 
of that ideal value.' 

According to Dr. Cunningham, therefore, the medi- 
eval theory of a just price for everything, and the 
medieval concept of value have been shown to be ab- 
surd and untenable by modern economic science. The 
schoolmen of the Middle Ages, habituated to the study 
of metaphysics, looked upon value as a quality in- 
trinsic to the thing itself. To them it was something 
objective, definite, stable, and fixed ; and so the meas- 
ure of value, or price, was something stable and fixed 
also. 

On the contrary, the doctrines of modem economic 
science have been formulated by men accustomed to 
deal with the physical and mathematical sciences. 
These men have brought their strictly scientific meth- 
ods to bear on the economic problems of supply and 
demand. They have taught us that the medieval 

sDr. Ctmningham, Western Civilization in its Boanomio Af- 
peds, 1900, p. 78. 



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86 VALUE IN MORAL THEOLOGY 

quest after a just price for commodities was as chi- 
merical as the quest after the San Grail. Taught by 
them we now know that prices are not stable and 
fixedy but are always fluctuating, and must of their 
very nature fluctuate. The plenty or scarcity of the 
time will affect the quantities of the available com- 
modities, and so will affect the relative values. We 
now know that money itself, the measure of value, is 
subject to the same economic laws as other commodi- 
ties, and that it fluctuates in value as they do. So 
that the attempt of the schoolmen to arrive at a just 
price for each particular thing involved the two ab- 
surdities of supposing that there can be stability in 
relative values, and stability in the value of money. 

Let us see what the schoolmen really did teach 
about the just price of commodities. It is easy to 
state some absurd theory, ascribe it to the metaphysi- 
cal scholastics of the Middle Ages, and then proceed to 
demonstrate its absurdity. It is a more scientific 
method of procedure first, as the scholastics were fond 
of doing, to make sure of the fact — Primo, quceritvr 
utrum sit 

Molina, one of the great doctors on justice, will tell 
us what the common teaching of the schoolmen con- 
cerning the just price of commodities really was. 
Almost any other of a score of scholastic theologians 
would serve our purpose equally well, and I shall re- 
fer to one or two others in the course of my remarks, 
but in the main I propose to follow Molina. The dif- 
ference between the date at which he lived and the 
thirteenth century, which Dr. Cunningham has spe- 
cially in view, need not trouble us, for there was no 



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AND POLITICAL ECONOMY 37 

change of doctrine in the meantime; Molina's teach- 
ing is merely that of St Thcmias somewhat amplified. 

This scholastic doctor then is careful in the first 
place to say what the just price is not derived from. 
It is not^ he says, to be measured by the excellence of 
things according to their own nature and intrinsic 
qualities^ but according as they serve man's use and 
benefit. A mouse considered in its own nature is a 
more excellent thing than com, but mice are worth- 
less^ while com, which serves man's necessities, has 
its price. 

However, he proceeds, the price of a thing does 
not depend merely upon its usefulness for supplying 
man's necessities, but it depends a very great deal 
upon the estimation which men commonly choose to 
have of it with reference to its use. Thus the just 
price of a gem, which is for ornament only, is greater 
than that of a large quantity of corn, wine, meat, 
cloth, and horses. And among the Japanese a piece 
of rusty iron or cracked pottery is of immense value 
on account of its antiquity; while among us it is 
worth nothing at all. And mere ornaments of col- 
ored glass have a far higher price among the Ethi- 
opians than gold, which they exchange for them. 
Now all this is brought about solely by the common 
estimation in which things are held in the place 
where they are exchanged, so that such trafficking 
is not to be condemned, though the want of culture 
and the manners of such peoples are sometimes laugh- 
able. 

So that the just price of a thing depends a great 
deal upon the common estimation of men in any 



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38 VALVE IN MORAL TEEOLOQY 

place; and when without fraud or any unfair dealing, 
a commodity is commonly sold at a certain price in 
any place, that may be considered the just price, as 
long as the circumstances which cause prices to vary 
remain unchanged. The Roman Civil Law ^ and the 
common opinion of doctors agree on this point 

But it must be observed, adds Molina, that a great 
many circumstances alter the prices of commodities. 
Thus scarcity makes the just price rise, while plenty 
makes it fall; the greater number of competing buy- 
ers at one time than at another, or their eagerness 
to buy, makes prices rise, on the other hand the few- 
ness of buyers makes them fall; the greater demand 
at one time than at another, while the supply remains 
constant, as of horses in time of war, makes prices 
rise. The scarcity of money in any place makes the 
price of other things fall, while abundance of money 
makes the price of other commodities rise. For the 
less the supply of money in any place tJie greater its 
value, and thus many more other goods are bought 
with the same sum. The manner of sale, too, alters 
the price, as we see in sale by auction, or when a man 
is anxious to find buyers and seeks them, or in sale 
by retail.*^ 

The just price which we have been considering was 
called by some theologians, following Aristotle, the 
natural price; not, as Molina is careful to explain, 
because it did not depend largely on men's estima- 
tion, nor because it was not very inconstant and 
changeable, but to distinguish it from the legal price> 

4L. Pretia rerum. Dig. ad legem Falddiam. 
8 Molina, De Justitia, tract ii., disp. 84& 



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AND POLITICAL ECONOMY 39 

which was settled for some commoditieB by law. In- 
asmnch as the natural, or vulgar price as it was also 
called, depended npon men's estimation, wants, and 
desires, which are very various, it could not be a 
quantity exactly determinate and precisely defined, 
it necessarily admitted of a certain latitude; and so 
theologians distinguished the highest, the lowest, and 
the middle price, and taught that justice would be 
done if the seller kept within those limits.® 

All this, even in the light of modem economic doc- 
trines, seems eminently practical and thoroughly in 
keeping with common sense; I fail to detect in it any- 
thing that savors of the " metaphysical,'' if that term 
is intended by Dr. Cunningham to mean unreal and 
unpractical. The whole point of the teaching of the 
theologians lies in this, that there is such a thing as 
a fair and reasonable price for commodities, in which 
English law and English juries agree with them, and 
that it is matter of justice to keep to it in contracts. 
The scholastics certainly knew as well as the mod- 
em economist that prices are always fluctuating; they 
knew that the plenty or scarcity of the time has great 
influence on the relative values of commodities of 
every kind; they knew of what is now called the law 
of supply and demand; th^ even knew that money 
is exposed to constant variations in value, and that 
it would be absurd to look for stability either in rela- 
tive values, or in the measure of values. In fact they 
knew all that Dr. Cunningham has taken for granted 
that tJiey did not know. 

From what has already been said, it is quite clear 

«/M(f. dlsp. 847. 



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40 VALVB IV MORAL THEOLOGY 

also, in spite of what Dr. Cunningham seems to im- 
ply, that the scholastics knew that ^^ value is not a 
quality which inheres in an object^ so that it shall 
have the same worth for everybody/' Molina ex- 
pressly states that it arises from the preferences and 
needs of different people, with their different desires 
and wants. As we shall presently see they unani- 
mously denied that the seller can charge for any spe- 
cial individual advantage which may accrue to the 
buyer from the bargain ; thus clearly supposing that 
social and individual value were two very different 
things. However, a difference between the scholastic 
doctrine on value and modem theories is touched 
upon, when Dr. Cunningham proceeds to say: — 

Value is not objective — intrinsic in the object — ^but sub- 
jective, varying with the desires and intentions of the 
possessors or would-be possessors; and because it is thus 
subjective, there cannot be a definite ideal value, which 
every article ought to possess, and still less a just price as 
the measure of that ideal value. 

According to modem theories then, value- — ex- 
change value is meant — is merely subjective, vary- 
ing with the desires and intentions of the possessors 
or would-be possessors of a commodity; and so there 
is no definite value which a thing possesses, and no 
just price, for a just price is merely the just meas- 
ure, the proper equivalent of value. A man may sell 
a horse for what he can get, he may exact whatever 
interest the borrower will give him for a loan, he may 
pay his workmen as little as necessity forces them to 
take for a day's wage. There is no just price for 
commodities, justice is not violated by however un- 



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AND POLITICAL ECONOMY 41 

conscionable a bargain. Certainly these are conclu- 
sionB of great importance^ and if they had been proved 
to be true, we should have to modify some of the rules 
of Moral Theology. Catholic theologians of the Mid- 
dle Ages, as well as their successors of to-day, are 
unanimous in teaching that there is such a thing as 
a just price for commodities, that justice can be vio- 
lated by charging too much for what is sold, and that 
individual wants and tastes do not finally settle the 
just price. "The estimation of one or two,'^ says 
Lugo,^ "does not suffice to raise the price, but the 
common estimation is required." This doctrine is 
common to all theologians, and most are content to 
quote in proof of it the Roman Civil Law: "The 
prices of things are not settled by the tastes or utility 
of individuals, but by those of the generality of peo- 
ple." 8 r£j^Q great authority of the Roman Law, that 
ever-living monument of written reason, was of itself 
considered sufficient to settle the question; but some 
went further in their inquiries as to the method of 
arriving at the just price. Scotus taught that to 
estimate the just price of his merchandise the mer- 
chant should reckon up all the expenses which he 
has incurred in buying, transporting, housing bis 
goods, then add to them something for his labor and 
trouble, and something else to compensate for the 
risks he has run : what corresponds more or less to all 
these items, will be the just price, he says.® 
In modern phrase the costs of production were the 

T De Justitia, xxvl., n. 42. 

• L. Preiia rerum, 63 Dig. ad legem Falddiam. 

• Molina, dlsp. 348. 



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42 VALUE IN MORAL TEEOLOGY 

meaBure of value, according to Scotus. TUb opinion 
was commonly rejected by other theologians, who 
pointed out that if this were so, the merchant who 
had lost a portion of his goods might raise the price 
of the rest to compensate himself; which could not 
be admitted, for the price of goods is not measured 
by the profit or loss of the seller, but by the common 
estimation concerning their value in the place where 
they are sold, consideration being given to all the 
circumstances ; besides Bes perit domino, and it was 
not fair that the public should bear the private losses 
of the merchant 

The common estimation then is the cause of value 
and the measure of value, according to the scholas- 
tics; and if the formula be understood as they under- 
stood it, there seems no objection why " the common 
estimation " should not still be used as a correct term 
for the cause and the measure of what economists 
call market prices. For certainly the market price 
of an article, whatever it may ultimately depend 
upon, is settled proximately by the common estima- 
tion of the value of the article in the particular mar- 
ket, at the time in question. Some of the most re- 
cent writers on Economics state this doctrine in 
terms as precise as those used by the scholastics. 
Thus Mr. J. A. Hobson^^ says: — 

Now, just in proportion as exchange or market-value 
enters and displaces use-value, so does social determination 
of value displace individual determination. While value 
in use is strictly personal, value in exchange is distinc- 
tively social. A market, however crudely formed, is a so- 

10 The Social Problem, 1901, p. 144. 



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AND POLITICAL ECONOMY 43 

cial institntion ; the value of our farmer's produce is partly 
determined by the personal labor he has put into them, 
but partly by the needs and capacities of others, and not 
even by the needs and capacities of any definite individual, 
but by a great variety of needs and capacities expressed 
socially through the instrument of a market price, which is 
a highly elaborate result of bargaining, and does not rep- 
resent the needs or the capacity of any single purchaser. 

It would seem, then, that the difference of view be- 
tween theologians and economists appears promi- 
nently and practically only vrtth regard to non-mar- 
ket prices. The theologian teaches that justice re- 
quires that there should be an equivalence of social 
value between the price and the thing bought; (I say 
"social value," because, of course, each party to a 
contract hopes to gain in individual value in use, 
otherwise there would be no exchange;) that the just 
price is settled by the common estimation of the value 
of an article; that value is partly objective, inasmuch 
as it supposes usefulness, capacity to be esteemed and 
desired, in the object, partly subjective, not, indeed, 
with reference merely to the wants and desires of the 
buyer and seller, but with reference to the common 
estimate of people at the particular time and place. 
However, theologians commonly allow the seller to 
charge for any special private loss of any sort which 
he may suffer from parting with his property, the 
pretium affectionis as it is called ; and so to this ex- 
tent they concede that subjective and private wants 
and desires may be allowed to influence the terms of 
the contract. What they agree in rejecting is the 
view that the seller may exact a higher price on ac- 



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44 VALVE IN MORAL THEOLOGY 

count of some private necessity of the buyer, for then 
he might sell dearer to the poor than to the rich, or 
on account of some special advantage accruing to 
the buyer from his purchase, for then he would sell 
what did not belong to him, and sin against justice.** 

On the other hand the economist considers that the 
value of an article and its price are settled by the 
consent of the parties to a bargain; no man would 
give 100 per cent, interest for money unless it were 
worth his while; the loan, therefore, is worth that 
price to him, and the lender does him no injustice in 
taking it 

This, of course, would be true if both parties to the 
contract were equally intelligent, free, and inde- 
pendent; a man, if he chooses, may give what he likes 
of his own for any commodity ; if he gives a sovereign 
for a cup of tea at a bazaar, held for a charitable pur- 
pose, nobody will have anything but praise for his 
generosity. But usually when an unconscionable 
bargain is struck the parties are not on equal 
terms. 

If a man promises 100 per cent for a loan, when 
the current rate of interest on money is 3 per cent, 
or if a laborer undertakes to work for sixpence a 
day, when the common rate of wages is sixpence an 
hour, hard necessity alone, or perhaps ignorance, will 
have been the cause of his consent to such unfair 
terms. In such cases theology teaches that he who 
exacts such hard terms commits a sin against justice, 
and is bound to restitution ; but the theory of value, 
on which this theological doctrine rests, is, according 

11 St Thomas IL U. q. 77, a. 1. 



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AND POLITICAL ECONOMY 45 

to Dr. Cunningham, an ^^ assumption which we have 
outlived." 

The difference between theological and economic 
doctrines on this point may partially perhaps be ex- 
plained by the difference of standpoint assumed by 
theologians and economists respectively. Theolo* 
^ans consider the question from an ethical point of 
view, they condemn whatever the Christian code of 
morals condemns ; on the other hand many economists 
at least treat the phenomena of political economy as 
they treat the phenomena of the physical sciences. 
The law of supply and demand is, for the purposes 
of the science, studied and reasoned upon with the 
help of mathematics as if it were as necessary and 
determinate as a law of astronomy; most economists 
abstract from questions of morality. Thus Jevons 
wrote: — 

I conceive that such a transaction must be settled upon 
other than economical grounds. The disposition and force 
of character of the parties, their comparative persistency, 
their adroitness and experience in business, or it may be a 
feeling of justice or of kindliness really influences the de- 
cision. These are motives altogether extraneous to a theory 
of economy." 

Perhaps Dr. Cunningham belongs to this class of 
economists, and perhaps he would not disagree with 
the theologians if he treated the matter from their 
point of view, for he writes : — 

We feel that it is unfair for the economically strong to 
wring all he can out of the economically weak, or to trade 
on terms in which ''common estimation" is notoriously set 

II The Theory of Political Economy ^ p. 124. 



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46 VALUE IN MORAL THEOLOGY 

aside. We have given up as impracticable many of the 
old attempts to put down hard bargains with a high hand : 
but modem moral feeling does not sensibly differ from that 
of medieval times in the desire, if it were possible, to 
interfere with the action of any dealers who are able to 
enrich themselves through the necessities or the ignorance 
of others, and to gain at their expense. If we tried to find 
a test by which to discriminate hard bargains we could 
scarcely do better than adopt the medieval phrase and say 
that hardship arises when a bargain is made without refer- 
ence to ** common estimation/'" 

This is admirable, but we hardly see how it can be 
reconciled with other passages of the same author. 
In other passages he seems to condemn the theolog- 
* ical doctrine not only as out of place in economics, 
but as false in itself. He thus seems to agree with 
many other writers, the earliest of whom is said to 
be Hobbes, who rejected the hitherto received doc- 
trine on commutative justice, and substituted an in- 
vention of his own. " The value of all things con- 
tracted for," he says, " is measured by the appetite 
of the contractors: and therefore the just value is 
that which they be contented to give.'^ " 

This assertion Hobbes did not attempt to prove, 
nor has it been proved by any of his followers. The 
argument drawn from marginal values is no proof 
that the subjective and individual theory of value is 
in accordance with truth and justice; it merely formu- 
lates the fact that as a rule people will exchange 
commodities as long as it is worth their while to 
do so. 

i« Western Civilization, p. 80. 
1^ Hobbes, Of Man, p. 137. 



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AND POLITICAL BOOVOUY 47 

Economists are by no means agreed as to the na- 
ture of valne^ although all confess that it is a ques- 
tion of the greatest difficulty; some hold that it is 
purely subjective, depending upon the desires of each 
individual ; others, that it is the same thing as private 
utility; others, that it is social utility; others, that it 
is the relation between two services exchanged; oth- 
ers, that the value of a commodity is the labor be- 
stowed on it, and so forth. None of these theories 
is commonly accepted, and none of them is an im- 
provement on the old doctrine that common estima- 
tion is the cause and measure of value.^ The merely 
subjective theory, which seems to be most in vogue, 
fails to furnish any reasonable ground for condemn- 
ing transactions which all, economists included, ad- 
mit to be wrong. It even furnishes some sort of jus- 
tification for the iniquities of the swindler, the usurer, 
and the sweater. I cannot do better than conclude 
this article with the concise argument by which, in 
his Encyclical on the Condition of Labor, Leo XIII 
proves its falseness as applied to the price of 
labor. 

We now approach a subject [says the Holy Father] of 
very great importance, and one on which, if extremes are 
to be avoided, right ideas are absolutely necessary. Wages, 
we are told, are fixed by free consent, and, therefore, the 
employer, when he pays what was agreed upon, has done 
his part, and is not called upon for anytiiing further. 
The only way, it is said, in which injustice could happen 
would be if tiie master refused to pay the whole of the 

IS Professor Smart in his little book on The Theory of Value 
(1914) says: **The history of economic science is strewn with 
the wrecks of theories of yalne," p. 1. 



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48 . VALVE IN MORAL THEOLOGY 

wages, or the workman would not complete the work under- 
taken. . . . 

This mode of reasoning is by no means eonvincing to a 
fair-minded man, for there are important considerations 
which it leaves out of view altogether. To labor is to exert 
oneself for the sake of procuring what is necessary for 
the purposes of life, and most of all for self-preservation. 
In the sweat of thy brow thou shalt eat bread. Therefore 
a man's labor has two notes or characters. First of all, 
it is personal; for the exertion of individual power be- 
longs to the individual who puts it forth, emplo3ning this 
power for that personal profit for which it was given. 
Secondly, man's labor is necessary; for without the results 
of labor a man cannot live, and self -conservation is a law 
of Nature which it is wrong to disobey. Now, if we were 
to consider labor merely so far as it is personal, doubt- 
less it would be within the workman's right to accept any 
rate of wages whatever; for in the same way as he is free 
to work or not, so he is free to accept a small remuneration 
or even none at all. But this is a mere abstract supposi- 
tion ; the labor of the working man is not only his personal 
attribute, but it is necessary, and this makes all the dif- 
ference. The preservation of life is the bounden duty of 
each and all, and to fail therein is a crime. It follows 
that each one has the right to procure what is required in 
order to live, and the poor can procure it in no other way 
than by work and wages. 

Let it be granted, then, that, as a rule, workman and em- 
ployer should make free agreements, and in particular 
should freely agree as to wages, nevertheless there is a dic- 
tate of Nature more imperious and more ancient than any 
bargain between man and man, that the remuneration must 
be enough to support the wage-earner in reasonable and 
frugal comfort. If through necessity, or fear of a worse 
evil, the workman accepts harder conditions because an em- 
ployer or a contractor will give him no better, he is the 
victim of force and injustice. 



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AND POLITICAL ECONOMY 49 

In the Irish Theological Quarterly for October, 
1914, Fr. Eelleher subjected the doctrine of the just 
price which I have been defending, to some adverse 
criticism. He writes: 

The diflSculty against this, which we may call the gen- 
eral desirability, convenience, or utility theory, is that it 
is only a variety of the fascinating game of sending the 
fool farther. In substance it means that we can get over 
the objection against a subjective, individualistic standard 
by applying it to 100 or 1000 cases instead of to one. 

Surely there is some confusion here. A stand- 
ard which applies to 100 or 1000 cases is not a purely 
subjective and individualistic standard. To show 
that just prices are settled by the common estimation 
is not an attempt to get over the objection against a 
subjective, individualistic standard by the fascinating 
game of sending the fool farther. This is a matter 
of importance and touches the very foundation of 
the commonly received theological doctrine on the 
point at issue. Let us see if we can clear it up. 

A society of men is not a mere collection of indi- 
viduals. There is the same difference between a so- 
ciety and the individuals who compose it as there is 
between a cathedral and a heap of stones which go 
to the building of it Society is an organism^ as the 
sociologists say. However small or however large a 
society may be^ it is an organized^ human entity. The 
family^ the town, the province, and the nation, are 
so many human entities, with rights, obligations, and 
a spirit of their own, quite distinct from the rights, 
obligations, and spirit of the individual members who 
compose those different societies. It is a fact, weU 



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50 VALVE IN MORAL THEOLOGY 

known and admitted on all hands^ that the spirit of 
a school lives and succeeds in giving a peculiar im- 
press on the successive generations of boys who pass 
through it. We need not here describe the organism 
of society on its physical side. It has an intellectual 
and an ethical side which specially interest us at 
present Society seems to know where its interests 
lie by instinct It is very quick to see when they 
are threatened and how they may be furthered. Liv- 
erpooly for example, shows its good sense by making 
its tramway system converge on the landing stage. 
From North, East, and South, the tram lines show on 
what the prosperity and very existence of Liverpool 
depend. It is essentially a seaport town, and de- 
pends for its prosperity on its sea borne commerce 
from the West At the outbreak of the German War, 
she at once began to take means to protect her ap- 
proaches by sea. She is interested in religion and 
ardiitecture, witness her new cathedral ; her art gal- 
lery and libraries show that she is interested in art 
and literature; she has attempted the solution of 
many social problems; she has a young and ambitious 
university, but she is most interested in her docks. 
Anything that threatens them, whether a strike, or 
the danger of a bombardment, or a fire, or a new 
dock, awakens her keenest interest Long study and 
experience have taught her how best to defend and 
to further her interests as a great seaport town. She 
does not waste money by cutting useless channels to 
the sea, like some of her neighbors. But she has an 
efficient fleet of dredgers which keep the river chan- 
nel open for the largest liners that cross the Atlantic. 



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Al^D POLITICAL ECONOMY 61 

She has a mind and a will of her own. Her mind 
and her will are quite different from the mind and 
the will of Manchester or of Preston, though all three 
towns are in the same English county. A new ora- 
torio might draw a good audience at Manchester, a 
lecture on new openings for cotton goods might 
awake interest in Preston, I doubt if Liverpool 
would listen to either. She does not despise liberal 
culture, but she is mainly devoted to the practical 
application of science and her school of medicine has 
distinguished itself in work on tropical diseases. She 
has a tender heart and has welcomed hundreds of 
Belgian refugees and subscribed large sums for their 
maintenance. To come closer to our subject. Liver- 
pool, as becomes a great center of commerce, has a 
very good idea of what all things in heaven and earth 
will exchange for. She knows the commercial value 
of things. This estimate does not depend on the in- 
dividual preferences and tastes of her citizens. It 
does not depend even on her corporate tastes and 
characteristics. She knows well that many things 
which have an exchange value come into her docks, 
but which she herself has no use for either socially 
or individually. She values them only because they 
will sell. Her merchants know quite well what they 
can get for them. There is a common estimate of 
what all sorts of merchandise will fetch if it is ex- 
posed for sale. That estiii[iate is constantly changing 
because it depends on a great variety of ever chang- 
ing circumstances, and it is expressed by the prices 
which rule on the exchanges and markets of the city. 
If a Manchester spinner asks for a supply of raw 



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62 VALVE IN MORAL THEOLOGY 

cotton, the Liverpool broker can tell him at what 
price he can have it The broker knows whether this 
year's crop is good, bad, or average. He knows 
whether it has cost more or less than usual to harvest 
and bring to market He knows the costs of produc- 
tion. He knows the price at which cotton is sold in 
New York. He knows the cost of freightage, how 
much it is increased by war and other risks. He can 
form a shrewd judgment as to whether the price is 
likely to rise or fall within the next month or two, 
and so he sends his quotation to the Manchester mer- 
chant The estimate which one Liverpool merchant 
forms is practically the same as that formed by an- 
other of equal competence. The price at which the 
bargain is struck is based on an estimate made by 
experts on what is the exchange value of cotton. It 
is based on a great multitude of external facts. It 
depends mainly on objective facts, not on subjective 
opinions or fancies. In no sense does it depend on 
the subjective and individualistic views and wants of 
the buyer or seller. It is a common estimate of the 
leading members of the exchange. It is a fair and 
reasonable estimate because it rests on facts. The 
price, then, at which the Liverpool broker supplies 
the Manchester spinner with raw cotton is a fair and 
reasonable price, it is a just price. 

The expert community of Liverpool, whose ideas 
and judgments are not those of the individuals who 
compose it, nor a conunon denominator of them, but 
those of a distinct, intelligent, and moral entity, esti- 
mates that in certain circumstances, at a certain time, 
raw- cotton should exchange at the rate of six pence 



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AND POLITICAL EOOyOMT 53 

per pound. There is an equivalence of social value 
between a pound of raw cotton and six pence. In 
exchanges the virtue of justice requires that equality 
of value be given and received. That^ then, is the just 
standard of price which must be observed by buyer 
and seller alike. It is a standard which is objective 
and social, not subjective and individualistic, nor is 
it a variety of the fascinating game of sending the 
fool farther. 



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Ill 

UNEARNED INCREMENT AND TITLE BY 
ACCESSION 

Soft Socialism, as the species has been nicknamed, 
snms up its policy in the formula : ^^ From each ac- 
cording to his ability, to each according to his want." 
The sentiment as expressing the ideal to which we 
may all aspire, and toward whose realization we may 
all work by the lawful means at our disposal, is quite 
admirable, and leaves nothing to be desired. There 
are, however, many obstacles to its realization in this 
workaday and selfish world, and prominent among 
them is the actual organization of social life. The 
militant school of socialism therefore acknowledges 
that much pulling down and other rough work must 
be done before we can hope to establish the socialist 
paradise on earth. These militant socialists also 
have their formulae, and at the root of them all is the 
claim of the laborer to the whole product of labor. 
H. S. Foxwell, Professor of Economics at the Uni- 
versity of London, in his interesting introduction to 
Dr. Anton Menger's book on the right to the whole 
produce of labor, does not hesitate to make this as- 
sertion : ^^ Dr. Menger does not exaggerate when he 
says of this principle that it is the fundamental revo- 
lutionary conception of our time, playing the same 

54 



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UNjBABNED inorbment 56 

part a8 the idea of political equality in the French 
Bevolntion and its offshoots " (page 6) . Dr. Menger 
discovers scattered suggestions of the doctrine in 
Locke's Ttoo Treatises of Government, and it is laid 
down with sufficient clearness in Adam Smith's 
Wealth of Nations. "The produce of latK)r/' says 
the father of modem political economy, " constitutes 
the natural recompense of wages of labor. In that 
original state of things which precedes both the ap- 
propriation of land and the accumulation of stock, 
the whole produce of labor belongs to the laborer. 
He has neither landlord nor master to share with 
him." The writers of the classical school of political 
economy accepted the doctrine and developed it 
Bicardo, for example, quotes the following extract 
with approval from Adam Smith : — 

In that early and rude state of society which precedes 
both the accumulation of stock and the appropriation of 
land, the proportion between the quantities of labor neces- 
sary for acquiring different objects seems to be the only 
circumstance which can afford any rule for exchanging 
them for one another. If among a nation of hunters, for 
example, it usually costs twice the labor to kill a beaver 
which it does to kill a deer, one beaver should naturally 
exchange for, or be worth, two deer. It is natural that 
what is usually the produce of two days', or two hours' 
labor, should be worth double of what is usually the pro- 
duce of one day's or one hour's labor. 

Bicardo then adds : — 

That this is really the foundation of the exchangeable 
value of all things, excepting those which cannot be in- 
creased by human industry, is a doctrine of the utmost im- 
I>ortance in i>olitical economy; for from no source do so 



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56 UNEARNED INCREMENT 

many errors and so much difference of opinion in that 
science proceed, as from the vague ideas which are at- 
tached to the word value. If the quantity of labor realized 
in commodities regulate their exchangeable value, every 
increase of the quantity of labor must augment the value of 
the commodity on which it is exercised, as every diminu- 
tion must lower it. ... If we look to a state of society 
in which greater improvements have been made, and in 
which arts and commerce flourish, we shall still find that 
commodities vary in value conformably with this principle : 
in estimating the exchangeable value of stockings, for ex- 
ample, we shall find that their value, comparatively with 
other things, depends on the total quantity of labor neces- 
sary to manufacture them, and bring them to market. 

Classical political economy reached its highest 
point of development in the writings of John Stuart 
Mill. He acknowledged that the question of value 
is fundamental in political economy: — 

The smallest error on that subject [he said] infects 
with corresponding error all our other conclusions; and 
anything vague or misty in our conception of it, creates 
confusion and uncertainty in everything else. Happily [he 
adds] there is nothing in the laws of value which remains 
for the present or any future writer to clear up ; the theory 
of the subject is complete. 

He therefore accepted the teaching of Bicardo^ but 
thought that besides the quantity of labor the wages 
also of labor must be taken into account. Seldom^ 
perhaps, has such expression been given to smug con- 
tentment and satisfaction ; seldom certainly has smug 
contentment and satisfaction met with so serious a 
reversal as has the classical theory of value. Certain 
English revolutionists and socialists who lived at the 



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UNEARNED INCREMENT 67 

end of the eighteenth and the beginning of the nine- 
teenth century, were not slow to appropriate the doc- 
trine of the classical economists and apply it to their 
own purposes. They began to point out that if the 
value of things was nothing but the quantity of la- 
bor put into ISiem, and the laborer had a right to the 
fruit of his own labor, all the wealth of the country 
of right belonged to the workers, who by their labor 
produced it Dr. Menger traces this doctrine and its 
application to anarchism and socialism through a 
succession of English writers, of whom the chief are 
William Godwin, Charles Hall, and William Thomp- 
son. In a very interesting passage, Professor Fox- 
well regards modem socialism as a protest against 
the exaggerated individualism introduced into Eu- 
ropean society at the Renaissance, and especially by 
the Protestant Reformation. Nowhere at the open- 
ing of the nineteenth century was that individualism 
more pronounced and the consequent sufferings of 
the masses of the people more severe than in Eng- 
land. It was natural, then, that the swing of the 
pendulum to the opposite extreme should first be ob- 
served in England, the home of laissez faire, and of 
the bourgeois political economy, as Marx called it 
From English socialists the doctrine of the right of 
the worker to the whole produce of labor was taken 
over by Marx and Rodbertus, and it thus became the 
fundamental doctrine of modem scientific socialism. 
The importance attached to it in modem socialist 
literature, and the implications contained in it, can- 
not be better appreciated than in the trenchant lan- 
guage of Mr* Robert Blatchford: — 



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58 UyEARNBD INCREMENT 

There are but a few landlords [he says, in Britain for 
the British] but they take a large share of the wealth. 
There are but a few capitalists, but they take a large share 
of the wealth. There are very many workers, but they do 
not get much more than a third share of the wealth they 
produce. The landlord produces nothing. He takes part 
of the wealth for allowing the workers to use the land. 
The capitalist produces nothing. He takes part of the 
wealth for allowing the workers to use the capital. The 
workers produce all the wealth, and are obliged to give a 
great deal of it to the landlords and capitalists who pro- 
duce nothing. Socialists claim that the landlord is use- 
less under any form of society, that the capitalist is not 
needed in a properly ordered society, and that the people 
should become their own landlords and their own capital- 
ists. If the people were their own landlords and capital- 
ists, all the wealth would belong to the workers by whom it 
is all produced. 

As labor, then, produces all the wealth of the coun- 
try, all the wealth of the country belongs of right to 
the laborer. Rent and interest on capital is un- 
earned increment, surplus value, produced by the 
worker, but which is filched away from its rightful 
owner by the landlord and the capitalist. To quote 
Mr. Blatchford again : — 

We all know how the landlord takes a part of the wealth 
produced by labor and calls it "rent.** But that is only 
simple rent. There is a worse kind of rent which I will 
call ** compound rent." It is known to economists as ** un- 
earned increment.*' I need hardly remind you that rents 
are higher in large towns than in small villages. Whyt 
Because land is more *' valuable. '* Why is it more valua- 
ble? Because there is more trade done. Thus a plot of 
land in the city of London will bring in a hundredfold 
more rent than a plot of the same size in a Scottish valley. 



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VVEAJtyED INCBBMENT 69 

For people mnst have lodgings, and shops, and offices, and 
works in the places* where their business lies. Cases have 
been known in which land bought for a few shillings an 
acre has increased within a man's lifetime to a value of 
many guineas a yard. This increase in value is not due 
to any exertion, genius, or enterprise on the part of the 
landowner. It is entirely due to the energy and intelli- 
gence of those who made the trade and industry of the 
town. The landowner sits idle while the Edisons, the 
Stephensons, the Jacquards, Mawdsleys, Bessemers, and 
the thousands of skilled workers expand a sleepy village 
into a thriving town ; but when the town is built and the 
trade is flourishing, he steps in to reap the harvest. He 
raises the rent. He raises the rent, and evermore raises 
the rent, so that the harder the townsfolk work and the 
more the town prospers, the greater is the price he charges 
for the use of his land. This extortionate rent is really a 
fine inflicted by idleness on industry. It is simple plunder 
and is known by the technical name of unearned incre- 
ment. It is unearned increment which condemns so many 
of the workers in our British towns to live in narrow 
streets, in back-to-back cottages, in hideous tenements. It 
is unearned increment which forces up the death-rate and 
fosters all manner of disease and vice. It is unearned in- 
crement which keeps vast areas of London, Glasgow, Liver- 
pool, Manchester, and all our large towns, ugly, squalid, 
unhealthy, and vile. And unearned increment is an in- 
evitable outcome and an invariable characteristic of the 
private ownership of land. 

There, then, we have a gospel of anarchy and revo- 
lution fully developed. It is short, and easily under- 
stood by the meanest Intellect; it flatters the most 
powerful of all human passions, pride and cupidity. 
The worker produces by his labor all the wealth of 
the world; to the worker, then, all the wealth of the 



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60 UNEARNED INCREMENT 

world belongs. What have we to say to this propo- 
sition? 

In the first place it is a very defective analysis 
which traces such great and widely spread evils to so 
simple a cause. The abuses of private ownership are 
doubtless great^ and nobody deplores them more than 
we do. But the evils arising from the abuse of a 
system should not be attributed to the system itself. 

Then, we willingly grant that labor and produc- 
tion is one of the titles to property. A man has a 
right to the fruits of his industry. We do not grant 
this grudgingly; on the contrary, as workers, we 
claim it for ourselves, as we willingly concede it to 
others. Work is a great blessing, a great safeguard 
which nobody should forego, and which for most peo- 
ple will ever be a necessity. In the stoeat of thy face 
ahalt thou eat bread: If any ma/n wUl not work neither 
let him eat. We are the last people in the world to 
undervalue labor, and to deny it its just claims. The 
laborer, then, has a right to the fruits of his toil. If 
a man discovers land which belongs to nobody, and 
cuts timber there, out of which he constructs a cabin, 
the "cabin is his property, as being the fruit of his 
labor and skill. He has a right to its exclusive use, 
no one else, against the reasonable wish of the owner, 
may make use of the convenience which it affords. 
The owner has a right to all the advantages which 
the cabin can afford. It shelters him from rain and 
cold, it protects him from the too warm rays of the 
iiiidday sun, it is a defense against wild beasts and 
other enemies. Any use to which it can be put be- 
longs to him and to him alone, exclusively, because 



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UNEARNED INCREMENT 61 

it is Mb property, the fruit of his labor. Because it 
is his property he may destroy it if he pleases, and 
use the material for firewood. He may give it or sell 
it to another. He may freely dispose of what is his 
own. To interfere with such a right would be to 
interfere with the rights of labor, for the products 
of labor belong to and are at the entire disposal of 
the laborer. If our laborer is another Crusoe on an 
island which belongs to nobody else, and he is lucky 
enough to find and capture a goat, the goat, too, be- 
comes his property. He may kill and eat it if he 
likes, or he may keep it to furnish himself with milk. 
He may dispose of it as he likes, because it is his, 
and a man may do what he likes with his own. All 
the uses to which it can be put belong to him. If 
killed, its flesh and skin belong to him. If kept alive, 
all the uses to which it can be put are his for it is his 
property. If it happen to have young, the young 
belongs to the owner of the dam, for the dam, with 
all its activities, powers and capabilities, belongs to 
him who reduced it to subjection. If some one else 
comes to share our Crusoe's solitude, Crusoe may 
make him a present of some of his property, or he 
may barter it for something else of value. When the 
property by mutual consent is made over to another, 
it becomes his just as before it belonged to Crusoe. 
To deny this is to deny the sacred rights of property, 
it is to deny that a man may do what he likes with 
his own, it is to deny the liberty of contract, which 
it is so sovereignly necessary for the good of society 
to keep as far as possible unfettered. 
All that has been said must be admitted by those 



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62 VNBARNBD INCBBMBNT 

who maintain the right of labor to labor's produce. 
We have simply been developing what is implied by 
the right of property^ and modern English socialists 
do not deny the right of private property ; they loudly 
assert that the produce of labor is the private prop- 
erty of the laborer. But if what has been said can- 
not truthfully be denied^ we begin to see the fallacy 
of the fundamental tenet of modern socialism. That 
fundamental tenet is that all wealth is the product 
of labor^ and of right belongs to the laborer. Land- 
lords and capitalists are thieves and robbers who not 
only may with justice be compelled to disgorge their 
ill-gotten wealthy but who in the interests of justice 
should be compelled to do so. But what if by free 
contract it has come into the possession of the pres- 
ent owners from those who had an undoubted right 
to transfer it? And this in many instances is unde- 
niably the case. We must conclude that labor is un- 
doubtedly one of the titles to property, but it is not 
the only one nor the chief one. 

But, retorts the socialist, even if I admit this, it 
will not justify the extortionate rent which the land- 
lord charges, nor the interest on barren capital. The 
unearned increment should be handed over to the com- 
munity, to the people who make it 

To deny that the unearned increment of wealth be- 
longs to the owner of that wealth is in reality to deny 
the rights of ownership as they have just been set 
forth. The owner of the field has a right to all the 
advantages which the field can afford. All its uses, 
all its activities and powers belong to him ; it is pre- 
cisely for those uses, activities, and powers that he 



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VNBARNBD INCBBMBNT 63 

valnes it as his private property. The grass which 
it prodnces is his, whether he spent labor on it or not ; 
labor is not the sole title to property. If the grass 
grew without labor it is unearned increment Simi- 
larly^ the young animals belong to the animals' owner, 
not by the title of labor but from the very nature of 
the right of property, by which all that the thing 
owned is, or is capable of becoming, belongs to the 
owner of it If a great number of people come and 
settle round my field, my field rises in value, not be* 
cause they or I have spent labor on it, but simply 
because now being more favorably situated with a 
view to the conveniences of life, it is more highly 
valued and is worth more than it was before. The 
enhanced value is unearned increment, but on that 
account it does not cease to belong to me. 

Precisely in the same way the labor of the car- 
penter or bricklayer becomes more valuable in a 
thriving and rapidly increasing town. Whereas be- 
fore he had to be satisfied with thirty shillings a 
week, he can now easily earn forty shillings. He 
works neither harder nor longer hours, but because 
of the increased demand, the value of his labor has 
increased. The enhanced value is unearned incre- 
ment, but the carpenter would be very much aston- 
ished if he were told that it did not belong to him, but 
to the community who made it; that if he kept it he 
would be no better than a thief and a robber. All 
this is admirably summed up in the old maxim — 
Res fructificat domino. By the law of nature, by 
the very nature of the right of property, whatever a 
thing produces belongs to the rightful owner of that 



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64 UNEARNED INCREMENT 

thing. When the produce is due partly to the natural 
OP artificial fertility of the property and partly to 
human labor, both the owner of the property and the 
laborer have rights in the produce. It is not pos- 
sible to define exactly what proportion is due to the 
owner and what to the laborer. A laborer indeed 
whose whole working capacity was given to the work 
has a right to so much of the produce or its 
equivalent as will support him in decent comfort. 
The laborer has a duty and a right to live in a manner 
conformable to the dignity of human nature and his 
circumstances, and in the case supposed the only 
means he has to fulfil his duty and to exercise his 
right must be derived from the fruit of his toil. 
Beyond saying this no more precise rule for the 
division of the produce can be laid down, so there is 
room for amicable arrangement and contract 

As his labor belongs to the laborer there is nothing 
to prevent him from hiring it out to an employer 
at any reasonable rate. As money in our modern 
capitalistic society is a means of production, as it 
may readily be exchanged for land, machinery, and 
other means of production, money has in fact become 
virtually productive, and therefore the lender of 
money rightly charges interest for his loan ; he shares 
in the produce of the money just as the landlord 
shares in the produce of his land. 

Besides the natural increase of property due to 
natural fertility which we have hitherto been con- 
sidering, property may increase by additions being 
made to it either by the agency of natural forces or 
by the will of man. The gradual additions made to 



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UNEARNED INCREMENT 65 

land by the action of a river or of the sea, called 
allwoion in English law, is an instance of an addition 
being made to property by natural forces. The mix- 
ing of liquids belonging to different owners, called 
confusion, and of solids, called commixture, are ex- 
amples of additions to property made by the will of 
man. All these instances, like that of natural fer- 
tility, are comprised by jurists under the general 
name of Accession as a recognized title to property. 
In these latter instances, however, the law of nature 
is not so clear and definite. English law agrees with 
Roman in applying the maxim that what is accessory 
follows the principal when questions of ownership of 
the whole mixed property arise. Although the prin- 
ciple is quite in accordance with reason, yet reason 
does not seem to demand such a solution as peremp- 
torily as it requires that the produce of the natural 
fertility of property should belong to the owner of 
that property. In fact, when we descend to par- 
ticulars the principle is not applied absolutely and 
universally in Roman or in English law. 

Thus, a gradual increase made to land becomes in- 
deed the property of that land's owner by alluvion, 
but if the increase was made suddenly the property 
rights remain as before. So also if a piece of an- 
other man's timber is built into a house, the timber 
becomes the property of the owner of the house, but 
by law he must make compensation to the owner of 
the timber. Commixture is a species of accession 
where movables belonging to one owner are mixed 
with similar movables belonging to another. The 
principles of English law on the question are en- 



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66 UNBARNBD INCREMENT 

tirely at one with those of the Roman law. The 
owners in general retain a right to claim a propor- 
tion of the mixture or its value.^ 

There is a special law with regard to money : ** Si 
alieni nummi^ inscio vel invito domino, soluti sunt, 
manent ejus cujus fuerunt Si mixti essent ita ut 
discerni non possent, ejus fieri qui accepit, in libris 
Qaji scriptum est, ita ut actio domino cum eo, qui 
dedisset, furti competeref * 

Lugo applies and explains this law in the following 
interesting passage : — 

Si pecuniam furtivam non accepisti gratis, sed in solu- 
tionem alicujus debiti, et earn per admixtionem cum majori 
Bumma fecisti tuam, postea comparente domino pecuniae, 
ad nihil teneris ; non enim ex injusta acceptione, cum bona 
fide acceperis; neque ratione rei acceptae, quia res accepta 
jam per admixtionem consumpta est, ac perinde se habet, 
ac si eam expendisses ; nee denique teneris, quantum f actus 
es locupletior, cum ea occasione nihil prorsus acquisieris 
lucri, sed habueris quod tibi alias debebatur: in hoc potis- 
simum casu loquitur ilia lex 8i alieni, de solutionibTis, 
quando dicit dominum pecuniae solum habere actionem 
contra furem ; quia nimirum qui illam in solutum acceperat 
non fuerat factus ea de causa locupletior, et aliunde jam 
per admixtionem acqmsierat ejus dominium.* 

This seems to be modem English and American 
law: — 

Where a person [writes Mr. Attenborough] is entrusted 
with goods or money for a particular purpose and he mis- 
applies the property with which he is entrusted, the pro- 

1 Encyclopedia of the Laws of England^ s.y. Ck>mmlztare. 

2 L. 78, Dig. De solutionibus. 
» De Justitia, vl., n. 171. 



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UNBARNBD INORBMBNT 67 

ceeds of such misapplication may be claimed by the owner 
of the goods or money as, e. g., if A delivers money to B 
to buy a horse for him and B buys a carriage with the 
money, A is entitled to the carriage. In such a case it 
makes no difference into what other form different from the 
original the change may have been made, whether it be 
into that of promissory notes for the security of the money 
which was produced by the sale of the goods, or into other 
merchandise; for the product of, or substitute for, the 
original things still follows the nature of the thing itself 
as long as it can be ascertained to be such, and the right 
only ceases when the means of ascertainment fail, which is 
the case when the subject is turned into mone^, and mixed 
and confounded in a general mass of the same description.* 

Where it is to be observed that both according to 
Boman and English law the transference of dominion 
in the money is not ascribed merely to the receiving 
of it for value^ but to the mixing or commixture of 
it with one's own moneys. It could be followed up 
if it remained separate and distinguishable, it can- 
not be followed up after mixture with one's own. 

^The Recovery of Stolen Qoods^ 1906. 



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IV 

OWNERSHIP AND RAILWAY PARES 

Although Mine and Thine are, according to an 
ancient Pather of the Church, cold and unsympa- 
thetic words, yet it is not likely that they will be 
banished from men's speech. They express facts and 
rights which are likely to be unchanged as long as 
human nature remains unchanged. In an ideal state 
of society, in which every member was perfect, it 
might be possible to have and enjoy all property in 
common, and to have no private ownership. But as 
long as most men will not work, unless to supply 
their personal needs, or those of their families, as 
long as most men are covetous and strive to get all 
they can for their own comfort and convenience, as 
long as most men are* selfish and take little care of 
what belongs to other people, it will be impossible to 
do without private property. And so one of the main 
functions of society is to defend private ownership. 
Private ownership is recognized and defended where- 
ever social life exists. As one of the great springs 
of effort and exertion it forms a valuable factor in 
the world's progress. Society which advances so 
slowly could not afford to dispense with so powerful 
an aid of advancement. Even if it wished to do so, 
the necessities of human nature as it exists would pre- 

68 



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OWNERaniP AND RAILWAY FARES 69 

vent it. Not only progress, but peace and security 
require that each should have his own. If each one 
'is protected in the peaceable possession of what his 
efforts have won, he has no right to complain; but 
there would be only too plentiful grounds of com- 
plaint and quarreling if the strong and capable were 
compelled to share on equal terms with the puny, 
lazy, and incompetent 

And so ownership is necessary for human nature 
as it exists. It does not owe its origin merely to 
positive law, it is anterior to positive law, which sup- 
poses it and safeguards it. Nature herself gives a 
man the right to own what is necessary and useful for 
his many wants; society, for the common good, de- 
fends that right. 

Private ownership then is one of those primary 
rights which flow from nature herself. As a man has 
from nature herself the right to live, so he has also 
from nature the right to own what is necessary and 
useful to preserve his life. 

Let us try to get a clear idea of what the right of 
ownership means and implies. What does a man 
mean when he says that this house is his? He means 
something quite different from what he means when he 
says that this boy is his son. In the latter case he 
means that he is the boy's father ; which fact gives him 
the right and the duty of bringing the child up; he 
has the rights because he is the boy's father, to educate 
him, and to direct him in everything until he is able 
to look after himself. But this right is chiefly for 
the benefit of the boy, not for the benefit of the father. 
The boy is a human being, a person, a creature with 



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70 OWNERSHIP AND RAILWAY FARES 

an intellect and free will^ with a destiny of his own. 
He is free and independent^ he does not exist merely 
for the benefit of his f ather, nor merely for the benefit 
of any other human being, or collection of human be- 
ings. He is a man, a person, like they are; he has 
his own separate end and destiny, which is not merely 
subservient to others. And so, though the father 
calls the boy his, his rights over him are not those of 
an owner. But when a man claims this house as his, 
he asserts that he is its owner. The house exists for 
the sake of the man, it has no destiny of its own, it 
was built for the man to live in, the whole reason of 
its existence is to serve his need and convenience. 
But in saying that the house is his, the owner means 
something more than that it exists for his benefit. 
He claims exclusive property in it. He has it in such 
a way that all others are excluded. He has the right 
to its exclusive use. Because he is the owner, he has 
a right to all the advantages that it is capable of con- 
ferring. The various uses that it can be put to, as, 
for dwelling in, or as a warehouse, belong exclusively 
to the owner; so that if any one, without the owner's 
permission, makes use of the house, he takes what 
belongs to another and violates the virtue of justice, 
which requires that we should give to every one his 
own. 

So that ownership implies a certain connection be- 
tween the thing owned and its owner, which gives 
him the right to its exclusive use, in such a manner 
that if another, without the owner's permission, take 
it or use it, he thereby violates justice.* 

1 Logo, De Juit. et Jure, i. n. e. 



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0WNBB8HIP AND RAILWAY FARES 71 

If a man by force expels another from his honse, 
and takes possession of it for himself^ the injustice is 
obvioos. Bat even if the honse be empty, and with- 
out any violence being offered to the owner, if an- 
other against the owner's reasonable wish should 
make use of the house, he would take what did not 
belong to him, and would be guilty of a violation of 
justice. It might happen that no harm was done 
to the house. The intruder might unlock the door, 
use the house for a night's rest, and leave it in the 
morning just as he found it, neither better nor worse. 
And yet he would have committed an act of injustice 
in making use of what did not belong to him, against 
the reaaonable wish of the owner. 

This seems obvious and undeniable. It is ex- 
pressly stated or taken for granted by theologians.* 

It forms the basis of the distinction between the 
solemn and the simple vow of poverty. By the 
solemn vow of poverty the Religious renounces the 
ownership and the independent use of property; by 
the simple vow he only renounces the independent 
use. So that the vow of poverty can be violated not 
only by disposing of property, but also by using it 
without the requisite permission. 

Again, the use of a thing may be the matter of 
ownership quite apart from the ownership of the 
thing itself. There is not only an absolute, but also 
qualified ownership of property in a great many 
different forms. 

I may own not indeed the house, but the use of it 
I may have a lease of the house for a certain num- 

s Gf. Molina, De Ju$t. et Jure, iL d. 681, n. a 



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72 OWNERSHIP AND RAILWAY FARB8 

ber of years; and I have thereby as true a property 
in the honse, though not so perfect and absolute, as 
if I were its owner. If I am unlawfully disturbed 
in the peaceful enjoyment of the rights which my 
lease gives me, an act of injustice is committed. 
Even the owner would violate justice, if he unlaw- 
fully, before the expiration of the lease, should re- 
sume the use of his own house. So that the uses of a 
thing may be the objects of property, and the sub- 
ject-matter of justice and injustice, not less than the 
thing itself. If I let out a horse for hire, the hirer 
has a qualified property in the horse which cannot be 
interfered with without injustice. If I were, with- 
out the consent of the hirer, to make use of my own 
horse for a day, even though the hirer might not want 
him on that day, and might suffer no actual loss by 
my action, still I should be guilty of injustice, for 
I should have taken something which belonged to 
another. 

And whenever I have taken what belongs to an- 
other against his will, then justice prescribes that I 
should give it back to him. For justice requires that 
every man should have his own; as long then as I 
have anything belonging to another against his rea- 
sonable wish, so long am I violating justice; if I 
desire my sin to be forgiven, I must not only repent 
of what I have done, but I must as far as possible 
make restitution, otherwise I am constantly and un- 
justly detaining what belongs to another. In other 
words, an act of injustice by which I inflict an injury 
on another, always imposes an obligation of making 
restitution as far as possible. If the robber, or the 



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OWNERSHIP AND RAILWAY FARES 73 

tbiefy cannot restore the actual thing robbed or stolen, 
he must as far as possible give back an equivalent if 
there be one. It may happen that reparation for an 
injury is not possible, as in the case of adultery, 
where the right violated cannot be made good, and 
no equivalent can be offered. Or it may be that the 
owner does not care to exact an equivalent, or that a 
just equivalent is hardly determinable. Thus, if a 
neighbor against my will take a horse out of my stable 
and use it, I may be very angry on account of the 
injury done me, but I may not care to exact payment. 
I may have no intention of letting out my horses for 
hire. Or if a tramp makes himself at home in my 
house for the night without my knowledge and 
against my will, he does me an injury, but I should 
scarcely exi)ect payment for the night's lodging. On 
the other hand, if one took a horse which was kept 
in livery-stables on hire, and used him for a day's 
journey, he would be expected, and bound in con- 
science, to pay the usual price for the accommodation 
he had received. And so too, if a man took the use 
of a bed-room for the night in a lodging-house, he 
would be obliged to give the ordinary price; for he 
had taken something which did not belong to him, 
which had its price, and that all may have their own, 
justice requires that this price be paid. And it is to 
be noticed that the obligation remains, even if no 
damage be done to another's property in these cases. 
It might happen that the horse from the livery-stables 
would not have been wanted for anything else on the 
day on which he was taken, and that he was not only 
no worse, but distinctly better for the exercise, yet 



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74 OWNERSHIP AND RAILWAY FARES 

compensation would have to be made for its use; for 
the use of it had a money valae, and that use belonged 
exclusively to the keeper of the livery-stables; there- 
fore, that all may have their own, the just price must 
be rendered to him, otherwise justice will not be done. 

It would make no difference with regard to the 
obligation of making restitution, if in this case the 
livery-stables were owned by a company and not by 
an individual. For companies are moral entities 
and moral persons, capable of possessing property 
not less than natural persons. An injury, therefore, 
against the rights of ownership is done to a company 
when its property is unwarrantably taken or used 
against the wish of the company. And justice, which 
requires that all should have their own, compels a 
thief, who has unlawfully taken or used the property 
of a company, to make restitution of the thing taken 
or its equivalent, just as in the case of thefts from 
individuals. 

This duly of making reparation for violations of 
justice flows from the very nature of ownership and 
justice. It exists independently of any sanction or 
punishment imposed by the civil law. The thief, if 
discovered, is indeed amenable to certain pains and 
penalties imposed by the law, but, quite independ- 
ently of the law, he is obliged in conscience to make 
reparation for his wrong-doing. The law does not 
create this obligation — it is a sign that it already ex- 
ists. 

What has hitherto been said is merely the ordi- 
nary teaching of Catholic theology concerning justice 
and the obligations which it imposes. As far as I 



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OWNERSHIP AND RAILWAY FARES 75 

am aware, there is no theologian who would deny the 
principles which have hitherto been laid down. The 
doctrine is, I think, not only in accordance with right 
reason and the nature of justice, but it is supported 
by the unanimous authority of theologians. 

We may make a direct and simple application of 
these principles to the question of paying the fare for 
traveling on the railway. The railway is owned by 
a company, whose exclusive property it is. The com- 
pany has therefore a right, the natural right which 
belongs to all proprietors, to exclude all others from 
the use of the railway. If any one uses the railway 
against the wish of the company, he commits an act 
of injustice. The company, of course, sunk money in 
the railway in the hope of recouping itself by selling 
the advantages the railway oflfers to the public. The 
advantage of being carried so safely, easily, and 
quickly from one place to another is a convenience 
which is worth money. The use of the railway is a 
convenience which has its price, just as much as the 
convenience of a bed-room in a lodging-house. And 
just as one would act unjustly by making use of a 
bed-room in an hotel against the wish of the proprie- 
tor, with no intention of paying the ordinary price of 
the room, so one who travels on the railway with no 
intention of paying his fare acts unjustly. He makes 
use of the property of another against the owner's 
reasonable wish; that use is something which has a 
definite money value; he has taken the properly of 
another against his wish ; justice therefore prescribes 
that he should restore to the owner the price of the 
property that he has stolen. 



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76 OWNERSHIP AND RAILWAY FARES 

We do not rest the conclusion on the question as to 
whether any damage has been done to the property of 
the company by the passenger or not. 

It is sufficient to found the obligation of payment 
on the undoubted principle, that no one has a right to 
use another's property without his consent If he 
does do so he commits an act of injustice; and if the 
use in question has a determinate money value, he 
has, against the reasonable wish of the owner, taken 
so much of another's property, he is a thief, and 
must make restitution. It is quite immaterial 
whether the place which he occupied would have been 
occupied by some one else or not. For even if I 
foresaw that a fishmonger would not be able to sell 
or make any use whatever of a stock of fish exposed 
for sale, I should commit a theft if I took any of his 
property without paying for it; so one who travels by 
railway without paying his fare, even though no other 
positive loss thereby accrues to the company, takes 
what does not belong to him, and must restore its 
value to the owner. The right to travel by rail is 
property which only the owners or those who buy it 
from them can use. As every one knows, the law of 
the land recognizes and enforces the obligation of 
paying one's railway fare, and punishes any one who 
seeks to escape the obligation. We have heard it 
discussed whether such a law is not a merely penal 
law. But a law cannot be merely penal which en- 
forces a natural obligation. And, as we have seen, 
the railway passenger is under a natural obligation 
of paying his fare. To judge from the lists of con- 
victions which are to be seen in our railway stations^ 



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0WVER8H1P AND RAILWAY FAREH 77 

there would seem to be either some ignorance in the 
public mind on the moral principle of the question, 
or some laxity of conscience on the point We have 
briefly treated the question from the point of view of 
moral theology. 



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LIBERALISM AND USURY 

Thb liberal creed, not very long ago the standard 
of religions, political, and social orthodoxy in En- 
rope and America, is now held in its entirely by few. 
Dnring the greater part of the nineteenth century 
it held undisputed sway. Learned professors taught 
its dogmas in the universities; critics took them for 
granted in their estimate of new productions in all 
the departments of learning; politicians assumed 
their truth as the basis of the laws which they en- 
acted and the political measures which they adopted. 
Then sometime after 1870 a change began to set in. 
The appearance of socialism like a black cloud on 
the horizon, the open discarding of almost all moral 
restraint by large and increasing numbers, the frank 
avowal of hedonism as the only end of human exist- 
ence, the squalor, the physical and moral hideous- 
ness of our large centers of population, all these 
causes began to produce their effect on thinking 
minds. Could this be the right road of progress after 
all? Were the doctrines and ideals which had led to 
these things founded on truth and in reality? Were 
the dogmas of liberalism so certain and self-evident 
after all? To put such questions was to shake the 
glittering but unstable edifice of liberalism to its 

78 



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LIBERALISM AND V8VRY 79 

fonndatioiis. It soon became clear that the imposing 
structure was for the most part built up of no more 
solid materials than lath and plaster platitudes, and 
its occupants began to abandon it in streams. Even 
those stalwarts who refused to abandon the rickety 
dogmas of liberalism altogether^ found themselves un- 
der the necessity of re-interpreting them and accom- 
modating them to the changed conditions of the times. 

The present seems a suitable opportunity for study- 
ing this remarkable movemlsnt in human history. To 
trace in outline, at least, some of its features will be 
interesting and not without instruction. I propose 
in this paper to take the subject of usury. 

From time immemorial usury and usurer have been 
ill-sounding terms. The old civilizations of Baby- 
lonia as well as those of Greece and Rome had found 
it necessary to make usury laws. Philosophers, 
quietly studying the matter in the dry light of rea- 
son, had come to the conclusion that usury was a 
practice most contrary to nature. The Old and the 
New Testament condemned it The Christian 
Church declared whoever denied that usury is a sin 
to be a heretic. The civil legislation of all Christian 
nations agreed in prohibiting and punishing it But 
this consensus of opinion among the wisest and the 
best men who had ever lived was quite sufficient to 
grate on the liberal mind. The very fact that the 
doctrine was old, traditional, and universally ac- 
cepted, made it repugnant to the liberal creed. In his 
celebrated letters on Usury, Bentham lays down the 
proposition ^^ that no man of ripe years and of sound 
mind, acting freely, and with his eyes open, ought 



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80 LIBERALISM A2fD USURY 

to be hindered^ with a view to his advantage^ from 
making such bargain in the way of obtaining money 
as he thinki9 fit: nor (what is a necessary conse- 
quence) anybody hindered from supplying him, upon 
any terms he thinks proper to accede to'' (p. 2). 
In so many chapters of his book Bentham discusses 
all the reasons that the wit of man ever devised for 
restraining men's liberty from agreeing to pay what 
interest they liked for a money loan. He tri- 
umphantly refutes them all. Neither the prevention 
of the crime of usury, which indeed is only a bad 
name given to a quite laudable transaction, nor the 
prevention of prodigality, nor the protection of in- 
digence, nor the protection of simplicity, affords ra- 
tional grounds for usury laws. According to Ben- 
tham such laws are not only ineffectual: they are 
positively mischievous, inasmuch as they raise the 
rate of interest and thus increase the difficulties of 
the borrower. The historical prejudice against 
usury is readily explained as the fruit of envy and 
malice, for the spendthrift has ever been the favorite 
of mankind, if not of fortune, while one who saves and 
looks after his property has ever been unpopular. 
The celebrated passage in which Aristotle showed 
that money is barren is treated by Bentham with light 
banter and pleasantry. Bentham's Defence of Usury 
was published in 1787 and began slowly to produce 
its effect By the middle of the next century it had 
so changed the opinions of lawyers, legislators, and 
business men, that in the year 1854 the usury laws 
were abolished in England. Most of the Continental 
nations quickly followed suit, and the view which 



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LIBERALISM AND USURY 81 

educated men generally took of the question was ex- 
pressed with fitting conciseness and cocksureness by 
Lecky in his History of European Morals. He there 
writes : " When theologians pronounced loans at in- 
terest contrary to the law of nature and plainly ex- 
tortionate, this error obviously arose from a false 
notion of the uses of money. They believed it to be 
a sterile thing, and that he who has restored what 
he had borrowed, has canceled all the benefit he re- 
ceived from the transaction. At the time when the 
first Christian moralists treated the subject special 
circumstances had rendered the rate of interest ex- 
tremely high, and consequently extremely oppressive 
to the poor, and this fact, no doubt, strengthened the 
prejudice; but the root of the condemnation of usury 
was simply an error in political economy. When 
men came to understand that money is a productive 
thing, and that the sum lent enables the borrower 
to create sources of wealth that will continue when 
the loan has been returned, they perceived that there 
was no natural injustice in exacting payment for this 
advantage, and usury either ceased to be assailed, or 
was assailed only upon the ground of positive com- 
mands.'' ^ 

It may be remarked in passing that if the sterility 
of money is an error, it was an error which was not 
shared by theologians alone. Philosophers, states- 
men, lawyers, and the great bulk of mankind in gen- 
eral, were all on the same side. Lecky had no right 
to single out the theologians for his condemnation. 
But the reference to political economy is of most in- 

iHUionf of Bwropean Morals, L, p. M. 



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82 LIBERALISM AND USURY 

terest to us at present " The root of the condemna- 
tion of usury/' says Lecky, without a shadow of doubt 
on the matter^ ^^was simply an error in political 
economy.'' Like a good liberal, Lecky invokes the 
dogmas of political economy ; anything which is con- 
trary to them cannot be sound. However, since 
Lecky wrote, this particular dogma of the political 
economy which was then in vogue has been exposed 
to many a rude shock from several different quarters. 
The historical school of political economists, repre- 
sented in England by such men as Professor Ashley 
and Dr. Cunningham, has pointed out that, although 
the modem conditions of industry and trade may 
make it perfectly reasonable to charge and receive 
interest on a loan of money, it does not follow that 
it would be reasonable under all conditions. On this 
point it will be of interest to quote the words of the 
present Lecturer in Economic History in the Uni- 
versity of Oxford : 

With our modem knowledge and experience [writes Mr. 
L. L. Price], we think it foolish and mischievous to pre- 
scribe a legal maximum rate of interest, beyond which no 
one may legally lend or borrow. We argue that the eflfect 
of such a law is not to prevent the needy man from bor- 
rowing at a higher rate, but to make him pay still more, 
to compensate the lender for the risk which he runs of 
being detected by the law, and losing both interest and 
principaL We point to the means by which such laws 
could be evaded, and we contend that it is better to leave 
matters to the ordinary market influences, making strin- 
gent provisions, and devoting our efforts to the enforcement 
of these provisions against violence and fraud. And so 
we pass an unqualifled condemnation upon the usury laws. 

But if with such an historical economist as Dr. Cunning- 



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LIBERALISM AND USURY 83 

ham in his Growth of English Industry and Commerce, 
or Professor Ashley, in his Economic History, we shift our 
standpoint, and go back in imagination to the state of me- 
dieval society, and supply the circumstances of historical 
fact amid which these laws were enacted, we begin to 
qualify our condemnation. We see that there was no such 
opportunity for the investment of capital as there is now, 
and that the possessor of a large sum of money could 
scarcely apply it to any productive enterprise or use it him- 
self in such a way as to realize a profit. If then he lent 
it, and the security were good, and the money repaid, he 
rendered a service to another man, but himself sustained 
no loss. Nor was it the prosperous who would borrow, 
but the poor in distress, to relieve whom was the Christian 
duty of the rich. To ask then for more than the simple 
repayment of loans appeared to be extortion, and plainly 
immoral.* 

This is very different from the tone of Lecky. 
The outlook of the Oxford Professor is wider, and 
consequently his judgment is more tolerant. But an 
attentive consideration of the facts will show us how 
well founded this tolerant judgment is, and enable 
ns to be still more tolerant Although, of course, 
money existed in the Middle Ages, it was compara- 
tively scarce and formed but a small portion of the 
national wealth. Landed property was by far the 
most important form of wealth; personalty, which 
now far exceeds realty in value, was then almost a 
negligible quantity. Municipal law regulated the 
succession to landed estate and imposed on it the 
chief part of the public burdens of the state. Per- 
sonalty was too insignificant to attract the attention 
of the revenue officers of the crown, and of the civil 

s Political Economy in England, p. 131 ; ed. 1907. 



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84 LIBERALISM AND UBVRT 

lawyer, and accordingly it fell under the jurisdiction 
of the Church. This seems to be the explanation 
of the remarkable dichotomy which is observable still 
between the English law of realty and of personalty. 
But money was not only scarce in the Middle Ages; 
its functions were restricted to providing a measure 
of value and a ready means of exchange. As yet it 
scarcely existed as capital, capital being taken to 
mean a stock of money which can be readily applied 
to different productive enterprises which oflfer an 
opportunity for gain. Especially in the country 
parts a natural economy still prevailed in England 
in the thirteenth century.* The population was fixed 
to the soil and obtained a livelihood from the pro- 
duce of the small holdings which it held of the lord, 
or from rations distributed by him in consideration 
of services rendered. The great households lived on 
the produce of their estates, and when the produce 
of one estate was exhausted they moved to another. 
Even in the towns trade was fettered by all sorts of 
laws, customs, and regulations. It was organized in 
gilds subject to strict prescriptions as to the con- 
duct of business and as to the number of journeymen 
and apprentices who might be employed. The mas- 
ter-workman had indeed his necessary stock of imple- 
ments, but the material on which he worked was often 
supplied by his customers. The board, lodging, 
training, which his apprentices received in the mas- 
ter's house, and their hopes of succeeding to the busi- 
ness in due time, almost dispensed with the need of 
capital for wages. Machinery, of course, which 

« W. Cunningham, Growth of English Industry, I., p. 244 (1906). 



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UBBRALI8M AND USURY 86 

brought about the industrial revolution a century ago^ 
was still in the womb of the future. As Dr. Cunning- 
ham writes : ^^ In dealing with the Christendom of 
earlier ages we have found it unnecessary to take ac- 
count of capital, for, as we understand the term in 
modem times, it hardly existed at all. In the four^ 
teenth and fifteenth centuries we may notice it emerg- 
ing from obscurity, and beginning to occupy one point 
of vantage after another, until it came to be a great 
political power in the State." * 

But if the functions of money in the Middle Ages 
were almost confined to furnishing a measure of value 
and a medium of exchange, if it hardly at all, or only 
by way of exception, existed as capital, the only valid 
reason for exacting interest on a loan of money was 
necessarily something extrinsic to the loan itself. 
If risk was incurred by lending the money, or if there 
were loss to the lender because he was obliged to 
withdraw money from a profitable enterprise in order 
to make the loan, the lender of money was of course 
justified in exacting interest for his loan. He was 
not bound to benefit his neighbor with loss to him- 
self, except when an alms was due out of charily; 
it was only right, and acknowledged as such by every- 
body, that the borrower should recoup the lender for 
any loss that the latter incurred by making the loan. 
But if the lender incurred no such loss, if the money 
would lie idle and useless in its owner's coffers un- 
less it were lent, and if it was as safe or safer in the 
hands of the borrower and sure to be restored at the 
time agreed upon, then there was no ground for de- 

^ Western OMlitwiim, U., p. 162 (1900). 



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86 IIBBRALI8M AND V8UB7 

manding interest on a loan. The money wonld be 
borrowed to discharge a debt, to pay a contribution 
levied by the overlord, to pay a fine, or perhaps to 
purchase wine or some other article of luxury; the 
borrower made nothing by it: the only functions of 
money as yet were its uses as a measure of value and 
a medium of exchange. It passed out of the hands of 
the borrower in fulfilling these functions ; he derived 
no profit from its use; it was what canonists called it, 
a fungible, a good consumed as far as its then owner 
was concerned in the very first use of it There is 
no ground for charging interest here. The price of 
a good which is consumed in the first use of it is the 
price of that use. Professor Cassel writes: "All 
economic goods may be divided into two categories, 
those which satisfy our wants in being consumed at 
once, and those which afford a series of useful serv- 
ices before they are worn out. Food is an instance 
of the former category, houses of the second. This 
line of subdivision is one of the most fundamental 
in economic science. The price paid for an article of 
immediate consumption is of course the same as the 
price paid for the use of this article. This is not so 
in the case of an article belonging to the second cate- 
gory. The price paid for the single useful service it 
affords is one thing; the price paid for the article it- 
self is quite another thing." ^ 

Inasmuch then as money in the Middle Ages was 
not yet a form of capital (an instrument for the pro- 
duction of wealth) ; inasmuch as its only functions, 
speaking generally, were to serve as a measure of 

9 The Nature and NeoesHty of Interest, p. 86 (1908). 



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UBERALiaU AND V8UBY 87 

Talne and a medium of exchange, and no profit was 
as a rale made on a money loan by the borrower, the 
Church was quite right in teaching that in these 
circumstances there was no justification for taking 
interest on a loan of money ; that to do so was to com- 
mit the sin of usury. 

But, it may be said, the Church's action in this mat- 
ter put a restriction on trade and hindered the de- 
yelopment of commerce. In reply to this common ob- 
jection it may be said that it was not the Church 
which imposed the restriction, but natural justice and 
fair dealing. Justice and fair dealing are sometimes 
a restriction on trade nowadays, but nobody thinks 
of blaming the magistrate for requiring the rules of 
justice and fair dealing to be observed by traders. 

Beyond this it may be doubted whether the laws 
against usury were in fact any great restraint on 
trade. Trade was then in the hands of special gilds, 
or companies, largely confined to towns and occa- 
sional fairs, and hemmed in on all side by laws, cus^ 
toms, and jealously guarded privil^es. Ordinary 
people had no loose capital to employ in trade, and if 
they had had it, gentlemen would never have de- 
meaned themselves so far as to become hucksters for 
gain. Any one who had capital and had the neces- 
sary status in the appropriate gild of his town would 
find no difficulty in employing his capital by enter- 
ing into partnership with others in some mercantile 
enterprise, or employing an agent to trade for him, 
or embarking in trade on his own account. The 
Church made no difficulty about profit being gained 
in trade if only the trade were honest. It may then 



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88 UBBBALISM AND VBVRY 

be safely asserted that the usury laws imposed no 
undue restrictions on trade. 

One of the chief differences between the Middle 
Ages and modern times is that money has become 
capital in the interval. Some would say that this is 
the fundamental difference between the Middle Ages 
and our own times, and the cause of all other differ- 
ences. No precise date can be assigned for the be- 
ginning of the capitalistic age. As Dr. Cunningham 
says: "It would be still more hopeless to try to 
treat the intervention of capital as an event which 
happened at a particular epoch, or a stride which was 
taken within a given period. It is a tendency which 
has been spreading with more or less rapidity for 
centuries, first in one trade and then in another, in 
progressive countries. We cannot date such a trans- 
formation even in one land; for though we find traces 
of capitalism so soon as natural economy was ceasing 
to be dominant in any department of English life, 
its influence in reorganizing the staple industry of 
this country was still being strenuously opposed at 
the beginning of the present [nineteenth] century .'' ® 

Whenever the change took place, money is cer- 
tainly capital now, and one of its principal forms. 
Any one who has saved a sum of money finds no diffi- 
culty nowadays in employing it productively, in- 
numerable investments of all sorts compete for the 
money of the capitalist, and little or nothing can be 
done without its aid. The whole world lies helpless 
in the toils of Moneybags, as the socialist bitterly 
complains. 

• We$tem OivUizatUm, p. 108. 



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LIBERALISM AND USURY 89 

Will the fact that in the conditions of modem life 
money has become capital serve to explain and justify 
the taking of interest on a loan of money? The social- 
ists angrily deny it They maintain that Aristotle 
and the Christian Church were perfectly right when 
they condemned interest and usury as contrary to 
nature. Money, they say, is always and essentially 
barren. All wealth is produced by labor, as Adam 
Smith, Bicardo, and the classical school of econo- 
mists, taught The classical school of economists, 
however, wrote in favor of the moneyed classes, and 
they carefully abstained from drawing the obvious 
conclusion from this fundamental principle of mod- 
em socialism. If labor produces all wealth, then all 
wealth is the fruit of labor and belongs to the laborer 
by natural justice. The laborer indeed needs capital, 
and to get it he is obliged to have recourse to the 
capitalist, who takes the opportunity to rob him of a 
portion of the fruit of his toil. The capitalist as such 
does not work; the money which he lends produces 
nothing; all the produce is due to labor. The cap- 
italist would obtain all that is due to him if his loan 
without interest were paid back to him at the time 
agreed upon. The laborer produces more than is 
absolutely necessary for his support by working long 
hours and exhausting his strength ; he thus produces 
surplus value; but instead of enjoying all the fruit 
of his labor himself, as in justice he should do, he 
is compelled to hand over the surplus value to the 
capitalist to pay interest on his loan. The capitalist 
then is nothing better than a robber of the worst 
type; he lives on the plunder of the poor. 



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90 LIBERALISM AND USURY 

Anti-socialists have no difficulty in showing that 
this reasoning is utterly fallacious. The fundamen- 
tal principle that labor is the only source of wealth 
is false. Labor is indeed one of the sources of 
wealth; but it is not the only nor the chief source. 
Those commodities which can be produced in any 
quantity at will by common labor do indeed tend to 
gravitate in value toward the cost of the labor which 
produced them ; but beyond this it is impossible to go 
with the labor principle. Land^ mines of all sorts, 
forests, diamonds and precious stones, works of art, 
scarce objects of value, patent goods, have a value 
altogether out of proportion to any labor that may 
have been spent on them and independent of it 
Even in those goods which to some extent illustrate 
the partial truth of the labor principle, the price is 
seldom an exact equivalent of the cost of the labor 
bestowed on them. The fluctuations of supply and 
demand are constantly tending to disturb the equilib- 
rium. 

Machines and other products of inventive genius 
are not merely crystallized labor, as Marx and the 
socialists contend. They are means by which the 
forces of nature are subdued and harnessed and made 
to labor for the beneflt of man, multiplying the fruits 
of his toil twentyfold or a hundredfold. The work 
done by a steam-engine on the railway is not merely 
the reproduction of the labor bestowed on its manu- 
facture plus the labor of the engine-driver and the 
stoker: the steam-engine is an instrument by means 
of which the energy stored up in coal and steam is 
captured and made to work in the service of man. 



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LIBERALISM AND USURY 91 

Ab Mr. Mallock says, it is not merely crystallized 
labor; it is crystallized mechanics, crystallized sci- 
ence, and crystallized inventive genius, working with 
the forces of nature. 

Although the socialist reasoning is unsound and 
fails utterly on its constructive side, it has served to 
discredit the classical political economy from which 
source it derived its fundamental principle. Fur- 
thermore it has compelled anti-socialists to examine 
more deeply into the grounds of interest with a view 
to its explanation and justification. It has been 
found that it is by no means an easy task to explain 
how capital produces interest, and to justify that 
interest. B5hm-Bawerk, the celebrated Austrian 
economist, after many years of study, wrote two books 
on the problem — Capital and Interest and The Posi- 
tive Theory of Capital. The first is an exhaustive 
history and criticism of the numerous and varied 
theories that have been advanced in explanation of 
the matter, and the second contains a lengthy exposi- 
tion of his own view. After an interesting historical 
account of the canonist doctrine on usury, BOhm- 
Bawerk discusses the modem theories, grouped un- 
der four heads: the Productivity, Use, Abstention, 
and Labor or Exploitation theories. We have al- 
ready seen something on the last head; a word must 
now be said on the others. 

The production of wealth, or of economic goods, or 
of those material conveniences which meet our wants 
and have an exchange value, is commonly said to be 
the result of the action of three factors — land, cap- 
ital, and labor. The produce is due to the activity of 



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92 LIBERALISM AND USURY 

these three factors, and so it is only equitable that a 
share in the distribution of the product should fall to 
each. Bent thus goes to land; wages to labor; and 
interest to capital. That this happens in fact is of 
course a matter of daily experience; but according to 
Bdhm-Bawerk it does not explain the phenomenon of 
surplus value. The natural fertility of land aided by 
labor certainly produces economic goods; a share of 
the produce therefore is in justice due to the owner 
of the land and to the laborer. But what does money 
used as capital produce? Even if it aids in the pro- 
duction of goods, it does not follow from this that it 
produces values, much less surplus value, and the 
emergence of surplus value is the phenomenon to be 
explained. Whatever value the product has is due, 
says the Productivity theory, to the factors of pro- 
duction. Two parts are due respectively to land and 
to labor; the third is due to capital. But all the 
value that there is in this third portion of the product 
was already in the capital when it was applied to pro- 
duction. The productivity of capital then cannot ex- 
plain the emergence of surplus value in the shape of 
interest on capital. 

The Use theory is a modification of the Productivity 
theory, and it asserts that interest is due to the use 
of capital. This theory fails to recognize the great 
economic fact, insisted on by the Schoolmen, and the 
foundation of the canonist doctrine on usury. Capi- 
tal has no use beyond its consumption. When the 
borrower has paid for its consumption or use, he has 
paid for the capital; and when he has paid for the 
capital, or stock of money, he has paid also for its 



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LIBERALISM ASD V8UR7 93 

use. BOhm-Bawerk is fully conscious that the preju- 
dices of most modem economists are against him in 
this matter. ^^It is indeed/' he says^ ^^essentially 
the same question as was in dispute centuries ago be- 
tween the canonists and the defenders of loan inter- 
est The canonists maintained that properly in a 
thing includes all the uses that can be made of it; 
there can^ therefore^ be no separate use which stands 
outside the article and can be transferred in the loan 
along with it The defenders of loan interest main- 
tained that there was such an independent use. And 
Salmasius and his followers managed to support their 
views with such effectual arguments that the public 
opinion of the scientific world soon fell in with theirs, 
and that to-day we have but a smile for the ^ short- 
sighted pedantry ' of these old canonists. Now fully 
conscious that I am laying myself open to the charge 
of eccentricity, I maintain that the much-decried doc- 
trine of the canonists was, all the same, right to this 
extent — that the independent use of capital, which 
was the object in dispute, had no existence in reality. 
And I trust to succeed in proving that the judgment 
of the former courts in this literary process, however 
unanimously given, was in fact wrong/'''' B6hm- 
Bawerk goes to the roots of the question and shows 
conclusively the truth of his contention that the 
scholastics on this point were certainly in the right 

The Abstention theory, worked out by Senior and 
others, looks upon interest as the reward of abstain- 
ing from the immediate consumption of one's wealth. 
Capital is the fruit of saving; to save I must abstain 

T Capital and Interest, p. 216. 



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94 LIBERALISM AND U8UBY 

from immediate enjoyment; this abstention deserves 
compensation^ which it receives in the form of inter- 
est on the capital devoted to production. Lassalle and 
the socialists poured ridicule on the idea of the ab- 
stinence of the capitalist The idea of a Rothschild 
or a Carnegie, who cannot consume their wealth with 
the best intention in the world to do so, and who yet 
deserve reward for their abstinence, was too ridicu- 
lous in socialists' eyes. B6hm-Bawerk, however, pre- 
fers this theory to any of the others, and indeed it is 
closely allied to his own. That in brief consists in 
this. The problem of interest is a problem of value, 
and value depends upon facts of psychology, upon the 
wants and estimates of men who desire the satisfac- 
tion of those wants; but it is part of man's nature to 
esteem future goods less than present goods of the 
same sort and quality; so that flOO possessed at pres- 
ent is equal in value to flOS a year hence. There- 
fore in charging five per cent interest on the loan of 
flOO for one year the lender is merely demanding an 
equivalent in value for his loan. Bdhm-Bawerk's 
criticism has had a great effect on modem economic 
thought; but his own view has not met with anything 
like general acceptance. Objections to it have been 
raised on the ground that it is by no means new as 
BOhm-Bawerk seems to suppose, and that it explains 
nothing. Granted that in common estimation flOO 
of cash in hand is worth f 105 to be paid a year hence, 
what reason can be assigned for this common estima- 
tion? It does not seem to be an ultimate fact of hu- 
man nature. A bird in the hand is ordinarily indeed 
worth two in the bush ; but this is because of the un- 



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UBBRAU8M AND V8URY 96 

certainty whether the two in the bush will ever be 
in the hand. If the birds were securely fixed in the 
bush by quicklime so that they could be taken at 
pleasure^ two birds in the bush would be worth two 
in the hand^ perhaps even more under certain circum- 
stances. Similarly it is the element of uncertainty, 
or present need, or a good opportunity for immediate 
and profitable investment, which makes flOO in pos- 
session worth flOS a year hence. If these elements 
are excluded it is quite conceivable that in certain 
circumstances common estimation would consider |99 
to be paid a year hence a fair equivalent for flOO of 
present money. The possibility of the rate of interest 
sinking below zero, and the depositor having to pay 
the banker for keeping his money safely for him, is 
recognized by economists of standing. 

Bdhm-Bawerk, with other economists of the Aus- 
trian school, adopted the theory of marginal utility 
to settle the value of commodities. In substance the 
theory amounts to this. Prices of commodities de- 
pend on subjective valuations of buyers and sellers 
from first to last. A cobbler, for example, has made 
a number of pairs of shoes, of which some are for sale. 
What will be the price per pair? He wants some for 
his own use and for the use of his family; the sub- 
jective value of the pairs of shoes necessary to supply 
these wants will be very high. A change of shoes is 
desirable; but still a second pair will not have such 
subjective value as the first pair has. Then in de- 
scending scale of subjective value a third pair may be 
desirable to supply the place of one nearly worn out, 
and so on to the last pair, the pair that the cobbler 



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96 LIBERALISM AND USURY 

could most easily do without. The utility of this last 
pair of shoes is the marginal utility^ and according 
to the theory which we are discussing^ it settles the 
subjective valuation of a pair of shoes for the cob- 
bler, so that he will sell a pair at that price if he can- 
not get a higher, but he will not take a lower. Simi- 
larly, a buyer of shoes has his scale of subjective 
valuations, and he will not give more than the maxi- 
mum among them. Market prices are the equilibrium 
established between the opposing desires of buyers and 
sellers, and they are fixed by competition somewhere 
between the highest valuations of the buyers and the 
lowest of the sellers. This theory of prices is being 
attacked in England, France, and Gtermany, as un- 
real and as not agreeing with facts, as well as for 
being too subjective and too individualistic. Many 
writers who are not socialists maintain that exchange 
value supposes a constituted society of men, and that 
it is the social estimate of society which is the cause 
and the measure of exchange value. This is precisely 
the doctrine of the common estimation, the standard 
of prices according to the Scholastics, rediscovered by 
modem economists. 

The whole situation is one of great interest for the 
theologian. He sees that not only England, but Aus- 
tria, Germany, and other Continental nations have 
reverted to usury laws in less than fifty years after 
they had discarded them ; some main elements in what 
we may call the political economy of the Catholic 
Church are being brought back with honor from the 
ignominious exile into which they had been thrust by 
the liberal school. The dogmas of that school are 



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LIBERALISM AND USURY 97 

decried and reprobated not only by soeialists, but by 
the most accredited economists. Will the canonist 
doctrine on usury come to be generally recognized 
again as true? We have no hesitation in saying that 
there is every prospect of it, that in fact this is largely 
the case already, but that ignorance of what the real 
canonist doctrine was prevents the general recogni- 
tion of the fact The substance of the canonist doc- 
trine on usury consisted in the assertion that per se 
it is against justice to demand a price for a money 
loan over and above the restitution of the loan itself. 
In the matter of money it is not possible to distin- 
guish the price of the substance of a loan and the 
price of its use, as it is possible to distinguish the 
price of a house and the price of a lease of the same 
house. While insisting on this the canonists readily 
admitted that there were certain extrinsic titles for 
exacting interest on a loan of money. In other words, 
they taught that circumstances may justify interest 
on a loan which in other circumstances would be un- 
just. This is quite a common opinion among recent 
economists, and it has been adopted and developed 
by such an authority as the American economist F. A. 
Walker. Modem capitalism seems to be such a cir- 
cumstance. Nowadays a man may readily borrow 
f5000 without anything passing between lender and 
borrower besides a piece of paper. With this loan 
the borrower can easily purchase land, machinery, 
shares in commercial or industrial companies, or 
other agents of production where the distinction be- 
tween the value of the substance of the good and the 
value of its use and product is quite valid and legiti- 



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98 LIBERALISM AND USURY 

mate. Money thus used is capital, and it represents, 
and is in modem times readily exchangeable for, all 
sorts of productive goods. Money then used as capi- 
tal is virtually productive, and for all practical pur- 
poses it may be looked upon as a productive good 
itself. As Professor Cassel says: "The most im- 
portant achievement hitherto obtained by the discus- 
sion, which has been going on for so many centuries, 
is that the question, For what is interest paid? may 
now be regarded as definitely settled. It is stated, 
once for all, that interest is the price paid for an 
independent and elementary factor of production 
which may be called either waiting or use of capital, 
according to the point of view from which it is looked 
at"® If this be conceded, and I think that in the 
circumstances of the modem capitalistic world we 
need have no difficulty in conceding it, the question of 
usury is settled for the theologian. 

• Nature and NeoessUy of Interest, p. 07. 



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VI 

THE SUM REQUIRED FOR A GRAVE SIN OF 

THEFT 

Thb virtue of Justice forbids us to injure our neigh- 
bor^ and this obligation is of its nature grave^ as all 
theologians admit Still, if the matter be trivial an 
offense against justice is no more than a venial sin, 
as all agree. The well-known lines : — 

It is a sin 
To steal a pin. 
Much more to steal 
A greater thing 

may be as faulty from the strictly theological stand- 
point as they are from the poetic ; but for all that they 
express the theological truth that the matter de- 
termines whether a sin against justice is grievous or 
venial. 

But when does the matter become sufficient to con- 
stitute a mortal sin? Theologians have always con- 
sidered this a difficult question to answer. And yet 
it is a question of great practical importance for the 
confessor, not only that he may know when he must 
require restitution to be made under pain of refusing 
absolution, but also for measuring the guilt of viola- 
tions by religious of their vow of poverty; for this 
question is settled on the same principles. Nearly 

99 



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100 BVM REQUIRED FOR A GRAVE SIN OF THEFT 

all theologians who treat of justice discuss this ques- 
tion; and of late there has been a tendency in certain 
quarters greatly to increase the sum which others 
commonly assign as necessary and suflBcient for a mor- 
tal sin of theft. Unless I am much mistaken^ they 
have increased it unduly, and for reasons which have 
no validity ; so I propose briefly to examine the ques- 
tion again, and in doing so I will make use of the la- 
bors of economists. For although the question be- 
longs to theology, still, as we shall see, its solution 
partly depends on certain data which belong to eco- 
nomics, and on these it is only right that economists 
should be heard. 

Since about the time of Lugo (f 1660) it has been a 
common opinion among theologians that it is a grave 
sin of theft to rob a working man of a sum which 
is sufficient to support him and his family for a day. 
The reason for this doctrine is obvious and satisfac- 
tory. For that quantity will be sufficient for a mor- 
tal sin, whose theft causes a notable injury to the 
owner, an injury which ordinary men of prudence 
and sense consider serious, and which is sufficient to 
upset them considerably. This is the test which is 
applied in other matters where there is question of 
the grave breach of a moral law which admits of 
parvity of matter. When theologians settle what 
omission of the Office by a priest, or of Mass on a 
Sunday by the faithful, or what quantity of servile 
work on a holy-day of obligation is mortally sinful, 
they ask themselves what quantity of the matter pre- 
scribed or forbidden, as the case may be, is notable 
and considerable, having regard to the subject matter, 



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BUM REQUIRED FOR A GRAVE SIN OF THEFT 101 

the end of the precept in question^ and the intention 
of the lawgiver. In the same way, when we wish to 
know what snm is sufficient for a grave sin of 
theft, we consider how important it is for maintain- 
ing peace among men that property should be secure; 
what quantity of money or commodities is looked upon 
as considerable with a view to the use that can be 
made of them ; and what quantity will, with reason, 
cause the owner serious concern and chagrin if he is 
unjustly deprived of it. Now, to a workman, or in- 
deed to any one who has to earn his living, the loss 
of what will support him and his family for a day is 
a serious matter; it practically means that he has 
worked a whole day for nothing, and such a loss 
causes most men, with reason, to be seriously put out. 
So that we may take it as fairly established doctrine 
that the theft of such a sum will keep the owner and 
his family for a day is a grave sin. 

This rule, however, will only serve in those cases 
where theft has been committed against one who earns 
his living, or at any rate, who is not very rich. It 
cannot be applied to wealthy companies, or govern- 
ments, or to millionaires, who would hardly feel the 
loss of a day's support in however grand a style they 
live. And so in such cases we must have recourse to 
other considerations in order to find what quantity 
will constitute a grave sin of injustice when stolen. 
Here we consider, not so much the loss caused to the 
owner of the property, as the wrong done to public 
order and to the security of property. Public and 
private interests require that property should be safe; 
public as well as private interests are seriously jeop- 



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102 BUM RBQUIRBD FOR A GRAVE SIN OP THBPT 

ardized when notable injuries to property are of fre- 
quent occurrence. All this is but saying in other 
words that the public weal requires that theft of a 
considerable sum must be forbidden in all cases^ as 
a grave violation of justice, by the natural law. A 
prohibition, under pain of venial sin, not to steal a 
considerable sum of money, would not be sufficient to 
saf^uard the rights of property. In other words, 
theft of what is commonly at a certain time and place 
considered a notable sum of money, will be sufficient 
to constitute a mortal sin of theft, even when the 
owner of the property stolen is not sensibly the worse 
off. 

We have now arrived at a principle for measuring 
the quantity which will be grave matter in theft, in- 
dependently of the harm done to the owner who is 
wronged. But there remains the great difficulty of 
determining the quantity which public and private 
interests require should not be stolen under pain of 
committing grievous sin. The value of money is con- 
stantly changing, and differs considerably in different 
places ; the quantity of money, too, in a country varies 
greatly with the growth or decrease of national 
wealth, and so, a sum which was considerable at one 
time would cease to be so at another. This truth is 
illustrated very well by the change in the opinions of 
theologians from age to age on this point Navar- 
rus, in the sixteenth century, taught that a sum equiv- 
alent to about twopence-halfpenny of our money was 
sufficient for a mortal sin of theft This opinion, 
however, was commonly rejected as too severe. 
Sanchez says that the more common and the truer 



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SUM RBQUIRBD FOB A GRAVE SIN OF THEFT 103 

opinion fixed the sum at one shilling and eightpence. 
LugOy a generation later, called attention to the 
change in the value of money which had been caused 
by the large influx of the precious metals from Amer- 
ica. He asserted, that where formerly fifty gold 
crowns sufficed for support, three times that sum did 
not suffice in his day. And so, following the example 
of other recent authors, as he says, he put the sum 
required for grave theft, in the case of very rich lords 
and kings, at five shillings. St. Alphonsus thought 
five shillings sufficient in the case of rich lords, but 
for kings he put the sum of ten shillings. Modem 
theologians agree in still further increasing the 
amount. Haine and Marc increase it to between 
twenty and twenty-five francs; D^Annibale and Buc- 
ceroni to between twenty and thirty francs; Kenrick 
and Sabetti to five dollars; Lehmkuhl to between 
twenty and thirty shillings ; Berardi to between thirty 
and forty francs; G6nicot and Waflfelaert to forty 
francs. Lehmkuhl thinks that for England and 
America, on account of the less value of money in 
those countries, thirty or forty shillings would be re- 
quired for a grave sin. Father Ojetti * goes further 
than any one else that I have seen, and says that a sum 
under four pounds would not be grave matter. 

All these theologians, as was to be expected, attach 
great weight to traditional teaching on the point, but 
on account of the continual depreciation of money) 
they think the amount required for grave theft con- 
tinually increases. O^nicot, to take one example, 
says : — " Nee videtur haec ultima computatio [forty 

1 Synopsis rerum momlium^ 8.v. " Furtmn." 



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104 SUM RBQUIRBD FOR A GRAVE SIN OP THSPT 

francs] pro regione nostra modum excedere, si at- 
tenditur ingens mutatio quae in yalore pecuniae facta 
est a tempore quo multi auctores quos citat 8. Al- 
phonsus duos vel tres aureos [fifteen francs] require- 
bant''« 

The very great depreciation in the value of money, 
then, is the reason why he selects a sum eight times 
as great as that assigned by Lugo and others in the 
seventeenth century, and three times as much as the 
most liberal of those who are quoted by St Alphonsus. 
This reason is not theological, it rests on a question 
of fact: has money, in reality, depreciated so much 
in value during the last two or three centuries? This 
is a question belonging to economics, a difficult 
question, as all admit, but one on which great labor 
has been spent, and with regard to which fairly cer- 
tain conclusions have been reached, though no pre- 
tense can be made to mathematical accuracy. 

Professor Bastable, one of our greatest authorities 
on monetary questions, gives in the EncyclopiBdia 
Britannicaf a general history of the changes which 
have taken place within historical times in the value 
of money. Concerning the period with which we are 
dealing, he writes : — 

The amiual addition to the store of money has been es- 
timated as £2,100,000 for the period from 1545 to 1600. 
At this date the Brazilian supply began. The course of 
distribution of these fresh masses of the precious metals is 
an interesting point, which has been studied by Mr. Cliffe 
Leslie. The flow of the new supplies was first towards 
Spain and Portugal, and from thence they passed to the 

a Vol. I., n. 407. » S. v. *• Money." 



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SUM REQUIRED FOR A GRAVE SIN OF THEFT 105 

larger commercial centers of the other European coon- 
tries, the effect being that prices were raised in and about 
the chief towns, while the value of money in the country 
districts remained unaltered. The additions to the supply 
of both gold and silver during the two centuries 1600-1800 
continued to be very considerable; but, if Adam Smith's 
view be correct, the full effect on prices was produced by 
1640, and the increased amount of money was from that 
time counterbalanced by the wider extension of trade. 
At the commencement of this century [nineteenth] the an- 
nual production of gold has been estimated as being from 
£2,500,000 to £3,000,000. The year 1809 seems to mark an 
epoch in the production of these metals, since the outbreak 
of the revolts of the various Spanish dependencies in South 
America tended to check the usual supply from those 
countries, and a marked increase in the value of money was 
the consequence. During the period 1809-1849 the value 
of gold and silver rose to about two and a half times their 
former level, notwithstanding fresh discoveries in Asiatic 
Russia. The annual yield in 1849 was estimated at £8,- 
000,000. The next important date for our present purpose 
is the year 1848, when the Calif omian mines were opened, 
while in 1851 the Australian discoveries took place. By 
these events an enormous mass of gold was added to the 
world's supply. The most careful estimates fix the addi- 
tion during the years 1851-1871 at £500,000,000, or an 
amount nearly equal to the former stock in existence. The 
problems raised by this phenomenon have received the most 
careful study by several distinguished economists, to whose 
writings those desiring more extensive information may 
refer. The main features of interest may be briefly summed 
up . . . (2) The contemporaneous development of the 
Continental railway systems, and the partial adoption of 
free trade, with the consequent facilities for freer circu- 
lation of commodities, led to the course of distribution be- 
ing different from that of the sixteenth century. The more 
backward districts were the principal gainers, and a more 



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106 8VM REQUIRED FOR A GRAVE SIN OF THEFT 

general equalization of prices, combined with a slight ele- 
vation in the value, was the outcome. ... (4) The change 
in the value of money, which may for the period of 1849- 
1869 be fixed at twenty per cent., enabled a general in- 
crease of wages to be carried out, thus improving the con- 
dition of the classes living on manual labor. It may be 
added that the difficulty of tracing the effects of this great 
addition to the money stock is a most striking proof of the 
complexity of modem economic development. 

This general sketch is fully borne out by the re- 
sults obtained by other workers in the same field. 
The following table was drawn up by the Vicomte 
d'Avenel, and is borrowed from Palgrave^s Dictionary 
of Political Economy, iii. p. 193 : — 

Table op the Compabativb Purchasing Power op equal 
Weights op the Rmcious Metalb at dipperent 
Periods in France: — 



Pkbiod. 




Period. 






1451-1500 


about 6 


1651-1675 


about 


2 


1501-1525 


" 5 


1676-1700 




2% 


1526-1550 


" 4 


1701-1725 




2y4 


1551-1575 


" 3 


1726-1750 




3 


1576-1600 


" 2y2 


1751-1775 




2% 


1601-1625 


" 3 


1776-1790 




2 


1626-1650 


" 2y2 


1890 




1 



To show the changes in the value of money during 
the last century, we can avail ourselves of the Index 
numbers calculated for this purpose by able econom- 
ists, such as Jevons and Sauerbeck. They give the 
prices of a large number of the chief commodities in 
gold for each year. I subjoin a table composed of 
the Jevons^ Index numbers fop the years 1782-1839, 
and of Mr. Sauerbeck's to 1905. These Index num- 



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SUM REQUIRED FOR A GRAVE SIN OF THEFT 107 

bers show us whether gold increased or decreased in 
yalue^ and what the increase or decrease was approx- 
imately, for each year. 



Period. Jevons* 


Ind. No. 


Pebiod. Saaetbeck Ind. No. 


1782-84 


.. 97 


'1840-44 (Jevons, 77) 


92 


1785-89 


.. 87 


1845-49 


.. 85 


1790-94 


.. 93 


1850-54 


.. 85 


1795-99 


. 120 


1855-59 


.. 98 


1800-04 


.. 126 


1860-64 


., 101 


1805-09 


,. 138 


1865-69 


.. 100 


1810-14 


. 125 


1870-74 


.. 104 


1815-19 


. Ill 


1875-79 


.. 91 


1820-24 


. 92 


1880-84 


.. 83 


1825-29 


.. 88 


1885-89 


. 70 


1830-34 


. 79 


1890-94 


. 69 


183&-39 


. 85 


1895-96 


. 62 






1896-1905 


. 68 



If it were necessary, the results that we have ob- 
tained might be corroborated from other sources, but 
they will, perhaps, suffice for our purpose. 

We find then that from the end of the fifteenth cen- 
tury to the middle of the seventeenth gold decreased 
in value as 6 : 2 ; the Vicomte d'AvenePs figures fully 
bear out the correctness of Lugo's estimate quoted 
above; from that time till the end of the eighteenth 
century, the value of gold remained fairly constant; 
it sank during the revolutionary wars with France; 
after Waterloo it rose until about 1850, when it began 
to sink again till about 1870, since which time it has 
been rising gradually. The Vicomte d'Avenel calcu- 
lated that the purchasing power of equal weights of 
the precious metals in France in 1790 and in 1890 
was as 2 : 1, in other words, the net result of the fluc- 



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108 SUM REQUIRED FOR A GRAVE SIN OF THEFT 

tnatioBB in the value of the precious metals during 
the nineteenth century was that their value decreased 
by about one-half. 

These conclusions agree with what might be ex- 
pected on general principles. For the value of the 
precious metals^ as of other things, depends on sup- 
ply and demand. If the supply is increased, other 
things remaining the same, the value will fall, as was 
the case with gold when the vast stores from Amer- 
ica had been distributed through the commercial cen- 
ters of Europe in the sixteenth and seventeenth cen- 
turies. During the next century and a half trade 
developed, population increased, and the greater num- 
ber of business transactions demanded a larger sup- 
ply of money. The demand was equal to the supply, 
and in spite of the constant influx of gold, its value 
remained much the same for a century and a half. 
The revolt of the South American colonies from Spain 
tended to check supplies from that quarter, and gold 
rose in value till the discovery of the mines in Cali- 
fornia and Australia. The quantities drawn from 
thence caused gold to depreciate till about 1870, when 
the growing expansion of trade, the adoption by Ger- 
many and other countries of a gold standard of cur- 
rency, together with other causes, brought about an 
appreciation of the precious metal. 

The evidence, then, from Political Economy shows 
that gold has, indeed, depreciated in value since the 
time of Lugo, but that the amount of the depreciation 
is not nearly so great as some modem theologians 
suppose. If we say that the value of gold in Lugo's 
time was twice as much as it is now, we shall prob- 



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aVM BBQUIRED FOR A GRAVE SIN OF THEFT 109 

ably not be far wrong. So that if we take the opinion 
of Lugo and other great theologians of his time, as 
an accurate estimate of the quantity required for a 
grave sin of thef t^ we shall arrive at the sum required 
to-day on account of the depreciation in the value of 
money, by multiplying Lugo's five shillings by two. 
If we adopt the more liberal estimate of Laymann 
and others, we must double this amount, and say that 
the theft of more than twenty shillings is always a 
grave sin. However, besides the depreciation of 
monqr, other circumstances have to be considered, as 
we shall presently see. 

Father Lehmkuhl ^ thinks that in England and in 
the United States, where, he says, the value of money 
is less than in other countries, a sum of from thirty 
to forty shillings is required ; whereas in other coun- 
tries twenty to thirty shillings would be sufficient 
for the absolute sum necessary for a mortal sin of 
theft 

It is, of course, possible that money may have a 
greater value on the continent of Europe than in 
England and the United States. But this, again, is not 
a theological question, it is a question of fact, though 
a very complex one, and one very difficult to solve sat- 
isfactorily. Just as the value of commodities is meas- 
ured by money, so the value of money is measured by 
what it will exchange for. If one pound will purchase 
more commodities of the same quality in Germany 
than in England, then the value of money is greater 
in Germany than it is in England. And if this be 
the case, a mortal sin of theft will be committed by 

« VoL l^ 081 note. 



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110 8VM REQUIRED FOR A GRAVE SIN OF THEFT 

stealing a less sum of money in Germany than in Eng- 
land. 

Of course it is perfectly true that a pound will pur* 
chase more of some commodities in Germany than in 
Great Britain. It will purchase more wine in the 
Bhinelandy otherwise Rhenish wine would not be im- 
ported to England. On the other hand, it will not 
purchase more cotton goods, or else we should not 
export those articles to Germany. But the value of 
money depends on its general purchasing power, not 
on its power of purchasing more or less of one or two 
commodities. The general purchasing power of 
money is proximately determined by the law of sup- 
ply and demand. If the supply of money increases 
relatively to the supply of other commodities for sale, 
its value decreases; if the supply decreases its value 
augments. Moreover, whenever an object has a 
higher value the greater demand attracts supplies 
until a common level is reached. Money obeys this 
law like any other commodity, and the vast improve- 
ment in means of communication which the last hun- 
dred years have witnessed, the facility and cheapness 
of carriage, the intimate commercial relations which 
now exist between all the countries of the civilized 
world, tend to equalize values, if we neglect tariffs 
and the cost of transit. So that, although we should 
allow still for some difference in the value of money 
in the different countries of the civilized world, it is 
probable that the difference is not great. Professor 
Bastable says :^ "At present it is quite natural to 
assume that the materials of money are distributed 

^Encycl Brit., b.v. "Money." 



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BUM BBQUIBBD FOR A GRAVE SIN OF THEFT 111 

by means of international trade, and tend to keep at 
an equal level all the world over, — an assumption 
which is in general well grounded, though an impor- 
tant exception exists with regard to the East" 

Professor Marshall, one of our greatest English 
economists, is of opinion that money is now of greater 
yalue in England than in France. He writes : — • 

Free trade, improvements in transport, the opening of 
new countries, and other causes have made the general 
purchasing power of money in terms of commodities rise 
in England relatively to the Continent. Early in this 
century [nineteenth] twenty-five francs would buy more, 
and especially more of the things needed by the working 
classes, in France than £1 would in England. But now 
the advantage is the other way: and this causes the re- 
cent growth of the wealth of France to appear to be 
greater relatively to that of England than it really is. 

Many facts seem to corroborate Professor Mar- 
shall's opinion. There is undoubtedly less gold in 
England now than there was twenty-five years ago,'' 
and it is estimated that the circulation of gold, sil- 
ver, and uncovered notes per head of the population 
is almost as much in Germany and Spain, is consid- 
erably more in Belgium and Holland, and more than 
twice as much in France as it is in England.® 

Statistics published in 1903 by the Board of Trade 
in the Blue Book on British and Foreign Trade and 
Industry [Cd. 1761] tend to prove the same conclu- 
sion. By their means we can make a rough estimate 
of the relative cost of the chief necessities of life in 

« Principles of Economics, I., p. 317. 

T Dictionary of Political Economy, IL, p. 617. 

• /Md., p. 606. 



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112 8VM BEQUIRBD FOR A GRAVE SIN OP THEFT 

England^ in America, and on the Continent. Since 
1877 the price of food, which represents one-half of 
the total expenditure of the working classes, has de- 
creased by about thirty per cent in Great Britain; 
very much more than it has decreased in France and 
Germany. Between 1880 and 1897, the cost of work- 
men's food in Paris fell fourteen points, compared 
with thirteen in Germany, and forty-two in the 
United Kingdom,® Of the chief articles of food, 
bread and flour are cheaper in London than in Paris 
or Berlin; home-produced butcher's meat is slightly 
dearer, but the balance is redressed by the cheaper 
price of foreign and colonial meat. Butter and eggs 
are slightly dearer in London, but sugar and rice are 
cheaper. Clothing is cheaper, on the whole, in Eng- 
land than on the Continent or in America; house rent 
in the large towns is somewhat dearer. 

It would seem, then, that there is no reason for say- 
ing that money has less value in England than on 
the Continent, or that, on this account, a greater sum 
is required in England for a mortal sin of theft The 
contrary is probably more correct 

Not all countries, however, are equally rich; Eng- 
land and America are the richest nations in the world, 
and it is conceivable that in comparison with the 
wealth of the population, what is a notable sum in one 
country is not so in another. I take it that this 
would be true if the wealth of England and America 
were more or less equally divided among the popula- 
tion. This is not by any means the case. Wealth, 
in great measure at any rate, seems to accumulate in 

9 Loo. cit., p. 226. 



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8VM REQUIRED FOR A GRAVE SIN OF THEFT 113 

comparatively few hands, and the great mass of the 
people remains little the better off for the greater 
wealth in the country. The urban population of 
England is about seventy-seven per cent of the whole, 
and the recent investigations of Mr. Charles Booth 
and Mr. Kowntree have shown that some thirty per 
cent, of these live in a state of poverty, without a 
sufficiency of the bare necessaries of life. It seems to 
me that in these circumstances the common estimate 
of the value of money in England is not likely to be 
less, but rather more than in other European coun- 
tries. 

It is, indeed, true that wages are higher in England 
and in America than in France or Germany. Accord- 
ing to the rough estimate contained in the Blue Book 
from which I have already quoted, workmen's wages 
in the United States are one-and-a-half times higher 
than in England; in Germany they are two-thirds, 
and in France three-fourths of those which prevail in 
the United Kingdom. We may remark, however, in 
passing, that this does not prove that the cost of la- 
bor of the same amount and quality is greater in the 
States and in England than abroad; it may be, as 
many competent judges affirm, that English and Amer- 
ican labor is more efficient, and so as cheap or cheaper 
than labor is on the Continent. So that even though 
the income of the working-classes is greater in Eng- 
land than it is abroad, this will not cause them to put 
a less value on money if it costs them correspondingly 
greater effort Still the higher wages and cheaper 
food and clothing enable the working classes in Eng- 
land to spend more and live in greater style, than on 



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114: 8VM REQUIRED FOR A GRAVE SIN OF THEFT 

the Continent^ and this may somewhat lower the com- 
mon estimate of the value of money. But, even if 
we allow something for this, it seems to me that 
Father Lehmkuhl's estimate of the difference is much 
too large, amounting, as it does, to fifty per cent 

The general level of wages, not only in England 
and America, but on the Continent also, is very much 
higher now than it was sixty or seventy years ago. 
In 1883, Sir Robert Giffen calculated that in England 
at that time wages were much more than one hun- 
dred per cent higher than they had been fifty years 
before. ^^ Engel estimated that workmen's incomes 
had nearly doubled in Belgium between the years 
1853 and 1891.^^ This general rise in wages will 
have some influence on the estimate to be formed of 
the quantity required for a grave sin of theft For 
the working classes form the great bulk of the popu- 
lation, and their estimate of the value of money will 
greatly influence the general estimate. It seems clear 
that a workman who gets thirty shillings a week will 
put less value on ten shillings than if his weekly wage 
were only twenty shillings. We must, then, allow 
not only for the depreciation of money, but also for 
the higher wages, the higher standard of comfort, and 
in consequence, the relatively less value attached to 
money by the working-classes throughout the civilized 
world, independently of its purchasing power. 

All things considered, I see no reason for increas- 
ing the quantity which the greater number of modern 
theologians assign as the absolute sum required for a 

10 Dictionary of Political Economy, U., p. 617. 
iiJWd., 111., p. 679. 



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SUM REQUIRED FOR A GRAVE SIN OF THEFT 115 

mortal sin of theft. That quantity is about twenty 
shillings^ and if we attach much importance, as we 
should do, to the opinions of such classical moralists 
of the past as Lugo about such a question, the sum 
will be rather below than above twenty shillings. 

With twenty shillings I can purchase a week's work 
of an average workman, who will be able to support 
himself and his family on it Such a sum is a notable 
quantity of money ; it is a very respectable subscrip- 
tion even for a rich man to a charily, or any other 
object that attracts public support. Subscriptions 
to learned societies are, commonly enough, one pound 
or one guinea a year. If such a sum could be stolen 
without grave sin, its amount would prove too great 
a temptation for the virtue of large numbers of peo- 
ple, who wish to save their souls, but make little of 
venial sins; who shrink from crime, but, to put the 
matter in homely language, do njot profess to be bet- 
ter than their neighbors. For all these reasons, then, 
it seems to me that to assign twenty shillings as the 
absolute sum required for a grave sin of theft, is as 
near the truth as we can get in so intricate a ques- 
tion. 



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VII 

THE THEOLOGY OF STOLEN GOODS 

A THIEF who has stolen what belongs to another 
must, of course, restore the stolen property to its 
owner. But suppose that he does not do this, and 
the stolen property finds its way into the hands of 
others, who, perhaps, know nothing of the theft, what 
will be the duty of such possessors of another's prop- 
erty when they come to know the facts of the case? 
The older theologians discussed this question from 
the point of view of natural and Roman civil law. 
Their solutions of the various difficulties to which 
the question gives rise according to the variety of cir- 
cumstances were not uniform, and so we may con- 
clude that the dictates of the natural law on the point 
are not self-evident or clear. Nowadays the question 
is complicated by the differences in the civil laws of 
different states and nations. The editors of the new 
edition of the Moral Theology of 8t. Alphonsus, rec- 
ognized this. St. Alphonsus, following Busembaum, 
says: "Si bona fide rem [furatam] ipse emisti et 
vendidisti sine lucro, nihil teneris restituere, sed solus 
is apud quem res est*' ^ To this the editors append 
the following note : — 

1 III., n. eo9. 

lid 



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THB THBOLOGT OF 8T0LBN OOODa 117 

Ez jure Gallico, Italico, Austriaco, Hispano, qui rem in 
foro publico, vel de mercatore talia vendente mercatus 
est, is non tenetur earn domino reddere, nisi refoso sibi 
pretiOy quod rei dominos dein vicissim a venditore repetere 
potest. Ex jure Anglico, si res empta fuerit in nundinis 
(market avert) ^ ezeepto casu evictionis per judieis senten- 
tiam, dominium pariter transfertur in emptorem bonae 
fideL Et cum hoc ad commercii securitatem statutum sit, 
res potest retineri tuta conscientia. Ex jure Gtermanico, 
qui rem alienam a persona non suspecta acquisivit, potest 
earn retinere, donee constet eam esse f uratam vel amissam. 

The learned editors recognize, then, that the posi- 
tiye law of the country in such matters is also the 
rule to be followed in conscience. In his discussion 
of these questions, Father Lehmkuhl keeps in view 
the prescriptions of natural law for the most part, 
which he says, ^^ Sunt ibi servandae ubi leges posi- 
tivae aliud non constituerunt" 

Unless it is evident that the positive civil law on 
such matters is unjust it is certainly a duty in con- 
science to observe it It determines rights of prop- 
erty in doubtful cases which is certainly within its 
competence, and as it is practically the only rule 
available, it must be followed if contention, strife, 
and disturbance of the peace are to be avoided. It is, 
then, a matter of importance for the student of moral 
theology to know the rules laid down by English law 
concerning the ownership of stolen goods when they 
have passed out of the hands of the thief. I propose 
in this paper to indicate its ehief provisions, and to 
point out any peculiarities in which it differs from 
other fifystems of law which writers on moral theology 
have had in mind when they composed their treatises 



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118 THE THEOLOGY OF STOLEN 000D8 

OB justice. In my treatment of the question I shall 
principally follow the guidance of Mr. C. L. Atten- 
borough who^ in 1906, published a little yolume on 
the Recovery of Stolen Goods. 

The thief has no title to the property stolen by him, 
and he cannot acquire one by lapse of time. The 
longer he keeps what does not belong to him the 
greater injury he does the true owner. Moreover, the 
general rule is that the thief cannot give a valid title 
to property which he has stolen to anybody else. 
Nemo dot quod non hdbet — nobody can give to an- 
other what he does not himself own. This rule of 
common sense and natural justice is confirmed by 
English law. The Sale of Goods Act, 1893, sec. 21 
(1), enacts that: — 

Subject to the provisions of this Act, where goods are 
sold by a person who is not the owner thereof, and who 
does not sell them under the authority or with the consent 
of the owner, the buyer acquires no better title to the 
goods than the seller had, unless the owner of the goods 
is by his conduct precluded from denying the seller's au- 
thority to sell. 

The owner will be precluded from denying the 
seller's authority to sell by his conduct when he has 
held out the seller as the owner of the property, or 
has consented to his holding himself out as the owner, 
or as having the right to dispose of the property. In 
these cases, whether the seller act dishonestly or not, 
a buyer ignorant of the true facts who relies on the 
representation made will acquire a valid title to the 
goods by English law. Besides the foregoing there 



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THB THEOLOGY OF STOLEN GOODS 119 

are certain other exceptions to the role that the buyer 
acquires no better title to the goods than the seller 
had. 

And first with regard to money that has been stolen, 
and which, for the purposes of moral theology, we 
may treat as goods. When stolen money has been 
paid away fairly and honestly as currency for a bona 
fide and yaluable consideration the dominion of it 
passes to the payee, and the former owner cannot re- 
cover it. This is due partly to the nature of money 
as a medium of exchange and partly to the effect of 
positive law. It is to be noted that the privilege does 
not attach to coin not used as currency. Thus in a 
recent case where a thief had stolen a £5 piece, and 
afterwards exchanged it for five sovereigns, it was 
held that the person from whom the thief had stolen 
the £6 piece could recover it, as it had not been paid 
away in currency. As long as the money remains 
with the thief or his agent it may be recovered by its 
owner, and the same is true of stolen money given to 
another gratuitously by the thief. 

What has just been said of money applies also to 
negotiable instruments which pass by mere delivery. 
Under the term ^^ negotiable instruments '' in this con- 
nection are comprised bills of exchange, promissory 
notes, bank notes, cheques to bearer, exchequer bills 
in blank, foreign bonds with coupons payable to 
bearer, scrip of foreign loan, Egyptian bonds, deben- 
tures of an English company, foreign railway bonds 
or debentures payable to bearer, and in general any 
instrument which by the custom of trade is trans- 



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120 THE THEOLOGY OF STOLEN GOODS 

ferable in this countxy like cash by delivery, and is 
also capable of being sued upon by the person holding 
it for the time being. 

Another exception to the general rnle that the buyer 
acquires no better title than the seller had is fur- 
nished by sale in market overt According to the Sale 
of Goods Act, 1893, sec. 22 (1) : " Where goods are 
sold in market overt, according to the usage of the 
market, the buyer acquires a good title to the goods, 
provided he buys them in good faith and without 
notice of any defect or want of title on the part of 
the seller/^ Market overt is any open, public, and 
legally constituted market or fair, and any shop in 
London is a market overt for the sale of goods in 
which the shopkeeper deals. The sale must be in 
good faith as far as the buyer is concerned, for a val- 
uable consideration, and the contract must be made 
wholly in the market, and not elsewhere. There are 
special provisions made for the sale of horses to be 
observed if it is intended that the purchaser should 
benefit by market overt. 

If all the conditions required by law are fulfilled, 
sale in market overt transfers the property to the 
buyer even if the seller had stolen the goods. Just 
as for the common good property passes by prescrip- 
tion according to law, so it passes by sale in market 
overt according to law. 

However, the title of goods bought in market overt 
is not indefeasible. By sec. 24 (1) of the Sale of 
Goods Act, 1893: ^^ Where goods have been stolen 
and the offender is prosecuted to conviction, the prop- 
erty in the goods so stolen revests in the person who 



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THE THEOLOGY OF STOLEN GOODS 121 

was the owner of the goods, or his personal represent- 
ative, notwithstanding any intermediate dealing with 
them, whether by sale in market overt or otherwise." 
So that upon conviction of the offender for larceny 
the owner of the goods may request that an order for 
restoring them be made out in his favor by the court 
which sentenced the felon. This is expressly granted 
by the Larceny Act, sec. 100 : — 

If any person guilty of any such felony or misdemeanor 
as is mentioned in this Act, in stealing, taking, obtaining, 
extorting, embezzling, converting, or disposing of, or in 
knowingly receiving any chattel, money, or valuable se- 
curity, or other property whatsoever, shall be indicted for 
such offense, by or on the behalf of the owner of the 
property, or his executor or administrator, and convicted 
thereof, in such case the property shall be restored to the 
owner or his representative; and in every case in this 
section aforesaid the Court before whom any person shall 
be tried for any such felony or misdemeanor shall have 
power to award from time to time writs of restitution for 
the said property, or to order the restitution thereof in 
a summary manner: provided that if it shall appear be- 
fore any award or order made that any valuable security 
shall have been bona fide paid or discharged by some per- 
son or body corporate liable to the payment thereof, or 
being a negotiable instnmient shall have been bona fide 
taken or received by transfer or delivery, by some person 
or body corporate, for a just and valuable consideration, 
without any notice or without any reasonable cause to 
suspect that the same had by any felony or misdemeanor 
been stolen, taken, obtained, extorted, embezzled, con- 
verted, or disposed of, in such case the Court shall not 
award or order the restitution of such security; provided 
also that nothing in this section contained shall apply to 
the ease of any prosecution of any trustee, banker, mer- 



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122 THE THEOLOGY OF STOLEN GOODS 

chanty attorney, factor, broker, or other agent entrusted 
with the possession of goods or documents of title to goods 
for any misdemeanor against this Act 

It is to be remarked that the Sale of Qoods Act 
does not require the conviction to be obtained through 
prosecution by the owner of the property in order 
that this may revest in him^ and it has been specially 
provided that when conviction has been obtained by 
the public prosecutor, restitution of stolen property 
shall be made to the owner provided that he has given 
the Director of Public Prosecutions all reasonable 
information and assistance. 

It will be noticed that by the Larceny Act restitu- 
tion may be ordered after conviction not only for the 
felony of larceny, but for the misdemeanor of obtain- 
ing property by false pretenses with intent to de- 
fraud. The distinction is of importance in English 
law. Larceny has been defined as the felonious tak- 
ing the property of another without his consent and 
against his will, with intent to convert it to the use 
of the taker. To constitute larceny the taking of 
another's property must be invito domino. On the 
other hand, when the property of another is obtained 
by false pretenses, the owner consents to part with 
the ownership, but he is induced thereto by the fraud 
of the other party. This constitutes the misdemeanor, 
and in either case after conviction of the offender the 
owner who had been robbed or cheated could obtain 
an order for restitution under the Larceny Act In 
this respect, however, the Larceny Act was corrected 
by the Sale of Qoods Act, 1893, sec. 24 (2) : — 



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THE THEOLOGY OF STOLEN GOODS 123 

Notwithstanding any enactment to the contrary, where 
goods have been obtained by fraud or other wrongful means 
not amounting to larceny, the property in such goods 
shall not revest in the person who was the owner of the 
goods, or his personal representative, by reason only of the 
conviction of the offender. 

With reference, then, to the restitution of stolen 
goods an order for restitution can be made after con- 
viction for larceny, but not after conviction for a mis- 
demeanor not amounting to larceny. Such an order 
of restitution, however, which the court is empowered 
under these circumstances to grant after conviction 
is only one way of recovering one's property. If the 
property was obtained by a fraudulent contract the 
previous owner may by word of mouth or in writing 
rescind the contract, and then he recovers his title 
to the goods. The owner may seize his property 
wherever he finds it, and in case he was unlawfully 
deprived of it, he may use such force as is necessary 
for the purpose of recapture, though he may not al- 
ways enter upon another's premises in order to take 
what belongs to him. 

The owner may also recover his property together 
with damages for any injury that he has suffered from 
its loss by bringing a civil action against the fraudu- 
lent person who deprived him of it, or against an in- 
nocent purchaser, or against a thief who has robbed 
him after he has performed his public duty of prose- 
cuting the thief. Sale of stolen goods by private con- 
tract does not pass the property in them, and much 
less does gift, so that through how many hands soever 
they may have passed in either of these ways they 



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124 THE THEOLOGY OF STOLEN GOODS 

always remain the property of the owner from whom 
they were stolen, and they must be restored to him 
when the facts become known. Innocent purchasers 
of stolen goods who have surrendered them to their 
true owner may recover damages from those who sold 
to them whether the sellers knew of the defect in their 
title to sell or not This is expressly provided for 
by the Sale of Qoods Act, sec. 12 : — 

In a contract of sale, imless the circumstances of the con- 
tract are such as to show a different intention, there is — 

(1) An implied condition on the part of the seller that 
in the case of a sale he has a right to sell the goods, and 
that in the case of an agreement to sell he will have a 
right to sell the goods at the time when the property is 
to pass: 

(2) An implied warranty that the buyer shall have and 
enjoy quiet possession of the goods. 

The breach of a warranty gives a right to an ajetion 
for damages, while failure in a condition vitiates the 
contract Theologians discuss the question whether 
an innocent purchaser of stolen property, who after- 
wards becomes aware of the fact that the goods were 
stolen, may restore them to the thief in order to re- 
cover his purchase money. Whatever some theolo- 
gians may say in defense of such a proceeding, it could 
not be adopted among us without exposing the pur- 
chaser who had recourse to it to the danger of a crim- 
inal prosecution for misprision of felony or compound- 
ing a felony. An innocent purchaser who has suf- 
fered loss by having to restore stolen goods to their 
rightful owner may obtain compensation from the 



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THE THEOLOGY OF STOLEN QOOD8 125 

Court By 30 and 31 Vict, c. 35, s. 9, it is provided 
that : — 

Where any prisoner shall be convicted, either snnunarily 
or otherwise, of larceny or other offense, which includes 
the stealing of any property, and it shall appear to the 
Court by the evidence that the prisoner has sold the stolen 
property to any person, and that such person has had no 
knowledge that the same was stolen, and that any moneys 
have been taken from the prisoner on his apprehension, 
it shall be lawful for the Court, on the application of such 
purchaser, and on the restitution of the stolen property to 
the prosecutor, to order that out of such moneys a sum 
not exceeding the amount of the proceeds of the said sale 
be delivered to the said purchaser* 

Moreover, by 33 and 34 Vict, c. 23, s. 4, it is lawful 
for any court by which judgment shall be pronounced 
or recorded, 

if it shall think fit, upon the application of any person 
a^rieved, and immediately after the conviction of any 
person for felony, to award any sum of money, not ex- 
ceeding £100, by way of satisfaction or compensation for 
any loss of property suffered by the applicant through or 
by means of the said felony, and the amount awarded for 
such satisfaction or compensation shall be deemed a judg- 
ment debt due to the person entitled to receive the same 
from the person so convicted, and the amount may be 
ordered by the Court to be paid out of any moneys taken 
from the prisoner on his apprehension, or payment may 
be enforced in the same manner as pa3rment of any costs 
ordered to be paid in any civil action.' 

The Roman law, like most modem systems, granted 
a title by prescription for movables as well as im- 
movables. Accordingly, theologians teach that one 

s Attenborongh, p. 184. 



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126 THE THEOLOGY OF STOLEN GOODS 

who has possessed another's property in good faith 
for the time required to gain a title of prescription, 
thereupon becomes its owner, and is no longer bound 
to restore it to the original owner. In English law 
movables cannot be claimed by prescription, and so 
ownership in another's goods that have been stolen 
cannot be acquired by prescription among us, unless 
the goods belong to the Church, and are thus subject 
to ecclesiastical law. By ecclesiastical law uninter- 
rupted possession in good faith for thirty years gives 
a title to movables that have been stolen, and so one 
who in good faith bought a stolen chalice and kept 
it for thirty years would become its owner by prescrip- 
tion after that length of time. 

Greater difficulties than the foregoing arise when 
we consider the obligations of one who was in posses- 
sion of another's property in good faith, but who 
has parted with it to some third person. For the 
solution of this question various hypotheses may be 
made. 

One who formerly was in possession of another's 
property may have given it to a third person. In that 
case he must warn the donee that he has discovered 
that the gift belonged to some one else, and that he 
had no right to make it over to him; if he does not 
do this he will sin against justice, inasmuch as he is 
bound in justice, as far as possible, to prevent loss 
accruing to his neighbor through any action of his. 
Moreover, if he obtained any natural fruits from the 
property while it was in his possession, he must ac- 
count for them to the owner, for Res ff^tctificot 
domino. Any fruits obtained by his own industry 



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THB THS0L0G7 OP STOLEN GOODS 127 

on occasion of being in possession of another's prop- 
erty he may keep, they are the fructus wdustriae. 
If there are no actual fruits of the property in his 
hands, or if the property no longer exists, or the pos- 
sessor cannot be found, the former possessor in good 
faith will be under no obligations with respect to it 
or its owner. 

A purchaser in good faith and in market overt of 
another's property who has sold it again in market 
overt will have no further obligations towards the 
original owner or towards the buyer. He had made 
the property his own, and he sold it as his own. We 
have seen that if the sale was not in market overt, 
the sale does not pass the properly in the goods, and 
that the seller is liable to be compelled to refund the 
purchase money to the buyer who has restored the 
goods to their owner. Is such a seller also liable to 
the owner of the property? 

We have seen that by the Larceny Act, the Court 
may, after conviction of the ofiFender, order the resti- 
tution of any property that has been stolen or fraud- 
ulently acquired. In section 1 of the same Act, 
"property'' is interpreted as including — 

Every description of real and personal property, money, 
debts, and legacies, and all deeds and instruments relating 
to or evidencing the title or right to any property, or giv- 
ing a right to recover or receive any money or goods, 
and as also including not only such property as shall have 
been originally in the possession or under the control of 
any party, but also any property into or for which the 
same may have been converted or exchanged, and any- 
thing acquired by such conversion or exchange, whether 
immediately or otherwise. 



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128 THB TEEOLOQY OF STOLEN QOOD8 

At first sight it would seem from this that any one 
who has sold stolen property may be called upon to 
account for the proceeds to the owner. It has, how- 
ever, been held that this interpretation does not ap- 
ply to proceeds of stolen goods in the hands of inno- 
cent purchasers or pledgees, who hold such proceeds 
for themselves and not as agents to the thief, nor has 
the court power to order the restitution of such pro- 
ceeds. Such a purchaser, therefore, will only be 
bound to refund the purchase money to one who 
bought stolen goods from him when they have been re- 
stored to their owner. 

A seller, however, who acquired stolen property by 
gift, will come under the provisions of section 1 of 
the Larceny Act, and he may be compelled to account 
for the proceeds of the sale to the owner of the goods. 
An innocent holder of stolen goods, says Mr. Atten- 
borough, 

will either hold them as an agent of the thief, or as a 
donee from him, or as a purchaser, in which expression 
we include a pledgee. With regard to the thief's agent 
or donee it need only be said that he is in no better posi- 
tion than the thief himself, and that the goods can be 
recovered from him as readily and in the same way as they 
can be recovered from the person who stole them.' 

And again : — 

Where property has been obtained by fraud and still 
remains in the hands of the fraudulent person or of his 
agent, it can be recovered from him as readily as if it had 
been stolen; and the same applies if the property is in the 
hands of a donee from the fraudulent person, or of one 

s Attenborougb, p. 16. 



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THE THEOLOGY OF STOLEN OOOD8 129 

who has given value for the goods but with knowledge 
or, what is equivalent, an unsatisfied sospicion that some 
fraud has been committed with regard to them by the 
person from whom he received them.^ 

In this way then it would seem that English law 
settles in favor of the owner a question which is a 
matter of considerable controversy among theologians. 
The conunon opinion, indeed, of theologians is on the 
same side as English law, it obliges the donee of 
stolen goods to restore the proceeds of their sale to 
the owner when he cannot come at the goods them- 
selves, but some doubt whether this is so certain as 
to impose a strict obligation in conscience. It is to 
be noted that the obligation under English law does 
not arise until the order for restitution has been made 
out and put in execution. Until this step is taken, it 
may be said in favor of the more lenient opinion that 
when goods have been sold for money in good faith, 
the money as currency becomes the property of the 
seller, and especially when it is added to and mixed 
with one^s previous stock. It then becomes the 
seller's property by accession, 

for the product of, or substitute for, the original thing still 
follows the nature of the thing itself as long as it can be 
ascertained to be such, and the right only ceases when the 
means of ascertainment fail, which is the case when the 
subject is turned into money, and mixed and confounded 
in a general mass of the same description.' 

«/dM., p. 47. s Attenboroagh, p. S9. 



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VIII 

SECRET COMMISSIONS IN TRADE 

It is well known what a keen interest the high- 
minded and pnblic-spirited Lord Russell of KiUowen 
took in the question of secret commissions in trade. 
His wide experience at the Bar and on the Bench in 
England had convinced him^ as he publicly acknowl- 
edged when summing up as Judge in the case of Oetz- 
man vs. Long [1896]^ that ^Uhis business of corrupt 
bargains was a malignant canker; it was affecting 
honesty in all or in many details of the relations of 
life, and was not confined to commercial relations." 
He spent much time and thought on the question in 
the last years of his life, and in conjunction with Sir 
E. Fry he drafted a Bill of which the object was to 
make criminal all corrupt practices by or with an 
agent in the exercise of his agency. As Lord Chief 
Justice of England he introduced his Bill into the 
House of Lords in 1899 and again in 1900, but he 
never had the satisfaction of seeing it become law. 
He concluded the speech by which he introduced the 
measure in 1899 with the following weighty words : 

I feel strongly on this question, and have been led to 
detain the House at some length with the hope that your 
Lordships will share the strong interest I feeL As a ques- 

130 



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8B0RBT COMMISSIONS IN TRADE 131 

tion of money, and as affecting trade, it is important ; but 
that is not the only view presented to my mind. It is a 
practice that tarnishes the character of lawfial commerce; 
it blunts the sense of honesty in the man engaged in it; 
it is injurious to the honest man trying to conduct his 
business on high and honorable principles, and has a cor- 
rupting and degrading influence in ways that I need not 
formulate or define. I commend the Bill as an honest 
attempt to deal with what I conceive to be a great and 
growing evil.* 

Sir E. Fry explains the words of EcclesiasticuB 
27 : 2j concerning ^^ the sin that sticks fast in the midst 
of selling and buying " as a reference to secret com- 
missions.^ 

The Judge's exegesis may be somewhat too narrow, 
but in all probability secret commissions were given 
and taken in trading communities long before the days 
of the Preacher. 

The London [England] Chamber of Ck)mmerce ap- 
pointed a special Ck)mmittee to inquire into the mat- 
ter, and in 1898 this Committee issued a Report which 
contains a great deal of valuable information of which 
I have made large use in my paper. 

Under No. 5 the Report says : " Your Conunittee 
conclude from the evidence before them that secret 
commissions in various forms are prevalent in almost 
all trades and professions to a great extent, and that 
in some trades the practice has increased and is in- 
creasing, and they are of opinion that the practice 
is producing great evil, alike to the morals of the 

1 R. B. O'Brien's lAfe of Lord Russell of KiUotoen, p. 801. 
*The sin that sticks between buying and selling, by the Right 
Honorable Sir B. Fry, p. 1. 



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132 SECRET COMMISSIONS IN TRADE 

commercial community and to the profits of honest 
traders." 

The Committee expresses its opinion that much 
good might be done by written papers, or oral ad- 
dresses, or by public meetings directing attention to 
the "heinousness of the system of secret commis- 
sions and its detrimental effect upon morals and busi- 
ness," p. 6. 

Evidently it is a question which concerns the mor- 
alist and the priest, as well as the lawyer and the 
merchant, and no apology is needed for treating the 
subject in the pages of the Ecclesiastical Review. 
My instances will be taken from English sources, but 
I have no doubt that they could be paralleled from 
across the water. 

The fundamental principle which should be kept in 
mind throughout this discussion is that an agent of 
whatever kind is bound by the nature of his agree- 
ment to act for his principal and not for himself. He 
is engaged by his principal to buy or sell or do some- 
thing for him, and he receives compensation from the 
principal for what he does. He is bound to use or- 
dinary care and diligence in the matter entrusted to 
him, or at any rate such care and diligence as the cir- 
cumstances and the nature of the Vork to be done re- 
quire. In consideration for this he receives, as we 
suppose, a reasonable and just salary. Besides his 
salary he cannot claim any additional payment for 
what he does. 

However, as we have seen, it is a very common 
practice for agents of all kinds to receive something 
over and above the salary or wages which their prin- 



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SECRET COMMISSIONS IN TRADE 133 

cipal pays them. Indeed some railway porters, hotel 
waiters, and others, are said not to be paid at all by 
their employers, but to gain their living from the tips 
given them by eostomers. Cases are mentioned where 
such employees actually pay their employers for their 
posts. There can be no moral difficulty about such 
arrangements, unless they involve hardship or ex- 
tortion, which need not necessarily be present. The 
tips are freely given, as is here supposed, and they are 
reckoned on by employers and employed alike. Such 
practices may be objectionable, but in themselves they 
are not morally wrong. 

Somewhat different from these are cases in which 
the giving and taking of commissions are not equally 
reckoned on by the parties concerned. As an exam- 
ple I will take the case of the Oreat Western InstLr- 
ance Company vs. Cunliffe [1874] from the Report 
of the London Chamber of Commerce, p. 17. In this 
case the plaintiffs, a marine insurance company in 
New York, appointed the defendants their agents for 
settling claims and effecting re-insurances. There 
was a fixed percentage payable for settling claims, 
but no remuneration for re-insuring. The agents 
were allowed by the underwriters, in accordance with 
custom, 5 per cent on each re-insurance, and on the 
general balance of the year's accounts 12 per cent, on 
the yearns profits, if there were any. The agents, in 
their accounts sent to the company, mentioned the 
5 per cent, commission, but not the 12 per cent on 
the year's profits. When the company became aware 
of this they claimed an account of sums received in 
respect of such 12 per cent commission. The action 



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134 8B0BBT OOMMISaiONS IN TRADE 

was successful in the first instance, but was defeated 
on appeal. In the Ck)urt of Appeal, Lord Justice 
James said: 

Whether you call him a broker or not, the person who 
is the agent for the merchant or anybody else, by a well- 
established practice obtains the insurances, and receives 
a discount of 5 per cent, which he puts into his own pocket. 
He is paid by the underwriter, instead of by the prin- 
cipaL And then, by a practice quite as well known, recog- 
nized by everybody connected with the business, recog- 
nized by the Courts of Law of this country, referred to 
over and over again, there is another thing — ^there is a 
gratuity which the broker receives upon the settlement of 
the accounts, being 12 per cent, upon the balance, if the 
balance should happen to be a favorable one; that is, if 
the underwriter finds it to be a profitable account, he 
gives 12 per cent upon it to the broker who brought the 
business to him. The plaintifiEs have never disputed that 
the def aidants were entitled to retain in their pockets the 
5 per cent. They say, "We knew that, but we did not 
know of the other.'' But they never inquired. 

In such a case as this of course conscience follows 
the law; a well-recognized and legitimate custom is 
the agent's title to keep the commission. Sometimes 
indeed there is a difiieulty in such cases about the ex- 
istence of a recognized and legitimate custom. This 
is illustrated by the case of Hippesley vs. Knee Broth- 
ers, an appeal case decided in the High Court of Jus- 
tice on October 27, 1904. The appeal was from the 
decision of the County Court Judge sitting at Bris- 
tol. The following is the report of the case from the 
Times, October 28, 1904 : — 

It appeared that the plaintiff, Mr. Hippesley, a solicitor 
practising at Bristol, was desirous of selling a portion of 



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SECRET COMMISSIONS IN TRADE 135 

his collection of bric-a-brac and also certain pictures which 
he had bought from Messrs. Frost and Beed| bnt whidi, 
not having been paid for, were still in the possession of 
that firm. With that object in view the plaintiff inter- 
viewed the manager of the def aidants' firm, who cany 
on the business of auctioneers, and as a result of nego- 
tiations between the parties it was agreed that the defend- 
ant firm should sell the plaintiff's goods on the terms set 
out in two documents dated July 25, 1903. The terms of 
the defendants' employment, so far as they are material 
to this case, were as follows: In order to enable the 
plaintiff to obtain possession of the pictures purchased 
from Messrs. Frost and Beed the defendants were to ad- 
vance to the plaintiff a sum of £200, which sum, with 
interest at 5 per cent, was to be charged on the goods 
entrusted to them. The defendants were to sell the goods 
by auction, and were to be paid commission of 5 per 
cent on all lots sold, the minimum commission to be £20. 
The defendants were also to be paid all out-of-pocket ex- 
penses in addition, which included '' advertisements, print- 
ing and posting bills, printing catalogues, posters, time, 
and postages." The defendants instructed a firm of 
printers to print the posters and catalogues. The printers 
did the work, and in their ledger debited the account of 
the defendants with the sum of £13 9a., being the price 
which they would have Charged to any ordinary customer, 
but, on payment, they allowed to the defendantsy because 
they were auctioneers, the trade discount of 10 per cent, 
which they would not allow to any ordinary customera. 
The defendants in the account sent to the plaintiff 
charged him with the full amount of £13 9s., and did not 
make any rebate in respect of the trade discount allowed 
to them. In the same manner the defaidants received a 
discount of £1 8s. 7d. on the newspaper advertising ac- 
count, but charged the plaintiff with the full amount of 
the account The sale of the plaintiff's goods took place 
in September, 1903. The plaintiff, being dissatisfied with 



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136 8B0RBT OOMMISaiONS IN TRADE 

the result of the sale, brought this action in the Coonty 
Court, claiming from the defendants £1 6s. 8d., the dis- 
count the defendants had received from the printers, on 
the ground that that sum was a secret commission which 
had been received by the defendants whilst acting as 
agents for the plaintiff, and £1 8s. 7d., the discount re- 
ceived by the defendants on the advertising account, on 
the ground that the defendants had expressly agreed with 
the plaintiff to allow him that rebate on thB account. He 
further claimed that, inasmuch as the defendants, whilst 
acting as ageints for him, had received a secret commis- 
sion, he was entitled to the return of the £20 commission 
paid by him to the defendants. The defendants called 
evidence to prove, and did prove to the satisfaction of the 
learned Judge, that there was a long-established usage or 
practice amongst auctioneers to act as the defendants had 
acted with regard to the discounts on the accounts, and 
that it was thi9 usual practice for the printers to deal with 
the auctioneers as principals, and to allow them as trade 
customers the trade discount off the retail price, the whole 
of the retail price being charged by the auctioneeitr against 
the vendors. It was admitted that no mention of the dis- 
count was made by the defendants to the plaintiff; and 
the plaintiff swore that he did not know of any usage or 
practice under which the defendants might claim such 
discount, though he admitted that he knew there was such 
a practice with regard to the bills sent in by newspapers 
for advertising. The County Court Judge was of the 
<^inion that the defendants had acted honestly, and that, 
inasmuch as they took no secret commission from any 
person with whom they were negotiating a contract to 
be made between that person and the plaintiff, and inas- 
much as the plaintiff was not in fact damnified, the plain- 
tiff's claim failed, and that he was not entitled to recover 
from the defendants the amount of the trade discount al- 
lowed to the defendants, nor the amount of the commis- 



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SECRET COMMISSIONS IN TRADE 137 

fldon earned by the defendants on the sale of the plaintiff's 
goods. 

The Court of Appeal set aside the decision of the 
County Court Judge, and after delivering judgment 
the Lord Chief Justice said : 

He must say that he thought that the law which had 
been applied in the cases referred to should be applied in 
all cases where an agent employed to do certain work re- 
ceived a secret commission in relation to the performance 
of his duty to his employer from any one other than his 
employer. He only wished to add that he thought it was 
highly probable that there did prevail, unfortunately, in 
commercial circles in which perfectly honorable men 
played a perfectly honorable part, a most extraordinary 
laxity in the view which was placed on these proceedings. 
If a principal employed an agent for a given remuner- 
ation to do work for him, and employed him upon those 
terms, that agent was not allowed to make secret profit 
for himself out of that transaction. The sooner that was 
recognized, and the sooner that these secret commissions 
were made to be disapproved of by men in an honorable 
profession, the better it would be for trade and commerce 
in all its branches. He said that not because for one 
moment he thought that these gentlemen were acting other- 
wise than in what they believed to be in accordance with 
their rights, but the argument of Mr. Duke had led the 
Court — ^indeed, it had invited them — ^to say that the Court 
should allow those commissions to these gentlemen as 
against their principal because the principal knew, or 
ought to have known, that something of the kind was go- 
ing on. Of course, if it was brought to the knowledge of 
the principal that such things were being paid, it ceased 
to be secret, and then, of course, the question did not 
arise; but when there was no knowledge, the agent ought 
to account, and it was only honest that he should carry on 



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138 SECRET COMMISSIONS IN TRADE 

his business on the principle that he should acconnt. The 
two authorities Mr. Duke cited were authorities in which 
it was perfectly obvious that the employer knew that the 
agent was being remunerated by third parties; therefore 
they in no way affected the principle which he had en- 
deavored to lay down. For the reasons which he had 
stated the appellant was entitled to judgment for the 
two sums which the respondents had received by way of 
discount, but was not entitled to recover the commission 
which he had paid to them. 

In this case^ I think law is somewhat stricter than 
conscience need be. The principal had his work done 
for him by the agent according to the contract, and 
on the usual trade terms ; the commission was not in- 
tended for the principal, but was allowed to the auc- 
tioneer as such, by what seems to be a particular or 
local custom, much in the same way as booksellers 
deal with each other on more favorable terms than 
they grant to the outside public. There is no hint 
that the interests of the principal suffered in conse- 
quence of the agent receiving the commission from 
those whom he employed. In such circumstances 
there seems no reason why, as a matter of conscience 
and before the sentence of a competent authority, the 
commission received by the agent should be handed 
over to the principal. In conscience such a transac- 
tion may be looked upon as similar to the Christmas 
boxes which are given to postmen, or the little pres- 
ents which are made to servants and others by trades- 
men with whom they habitually deal. Unless de- 
barred by special agreement or command, the agent 
will be safe in conscience if he retain such presents. 

The line between these and a large class of more or 



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SECRET COMMISSIONS IN TRADE 139 

less objectionable practices is not easy to draw. The 
difficulty is touched upon by the Report of a strong 
committee of business men appointed to consider 
the question on behalf of the Rochester [England] 
Diocesan Conference of the Church of England^ 
1903: 

The Committee is convinced [we read in the Report, p. 
2] that what modem times and modem ways most re- 
quire, in order to make the nation clean and true, is faith- 
fulness in Christian people to Christian duty and to Chris- 
tian ideals. At the same time it is not infrequently diffi- 
cult to discover which is the path of duty. The Commit- 
tee had before them two clergymen of experience with the 
view of obtaining in confidence an account of their 
methods of dealing with cases of conscience in matters 
of Commercial Morality. The answers to a series of ques- 
tions which the Committee put, showed a considerable dif- 
ference of opinion; and it was abundantly manifest that 
there is a need for some guidance in the application of 
moral principles to individual cases of difficulty. 

As a type of the cases which I am here considering 
I select the following from the Report of the London 
Chamber of Commerce, p. 10 : 

A representative of a lubricating oil firm sent a copy 
of a letter which he had received from an engine driver: 
"Sir, having used your cylinder oil for going on eight 
years, I now take the liberty of asking you if you cannot 
allow me and my mate something for using the same. A 
gentleman came to our mill and asked me whose (^linder 
oil we were using, and how much a cask you were allowing 
me. I told him we were using your oil. He asked me if 
I would give their oil a trial and he would allow me a 
good discount. I said it was no use of him bothering as 
we were qidte satisfied with what we were using at the 



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140 8B0RBT COMMISSIONS IN TRADE 

present time. Hoping you will oblige ns by return of 
post I rtsmain, etc." 

If the oil of the riyal firm in this case was equally 
cheap and equally good, so that the employer would 
suffer no damage by its use, there would seem to be 
no injustice done if the driver gave it a trial in con- 
sideration of the discount promised him. The rival 
firm must be supposed to be ready to share part of 
their profits with those who use their oil, and this 
they have a right to do. No injustice is done by leav- 
ing the firm with which business has been done for 
eight years, though naturally such conduct is resented 
by tradesmen. It cannot be denied, however, that 
there is danger in such practices. If the engine driver 
receives a commission on the oil he uses, he is exiK)sed 
to great temptation to waste it, so as to increase his 
earnings ; if he findis that in course of time an inferior 
article is supplied, or if the invoice shows a greater 
quantity than he actually took, he is hardly in a po- 
sition to defend the interests of his employer. In the 
great majority of cases he would hold his tongue, 
I)ocket his discount, and fail in his duty to his mas- 
ter. On this ground Sir E. Fry absolutely condemns 
such transactions. 

Another, and less genuine line of defense, [he says] * 
is the assertion that the gift is not made with any inten- 
tion to bias the recipient, or that the recipient is not 
biased by it, and does his duty to his master in spite of it. 
This ignores the real point of the matter. To say whether 
a bribe has or has not operated on the mind of the re- 
cipient is a metaphysical inquiry which it is difl5cult for 

t The 9in that sticks, p. 7. 



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8B0BET OOMMIBBIOyS IN TRADE 141 

the man hinisdf , and often impoesible for cAiaatB, to aiip 
8wer; to say what is the tendency of a bribe is a matter 
of no difficulty; and in all transactions of this sort, often 
obscured and embarrassed by the complications of mod^n 
commercial life, the tme inquiry is, has the payment 
(made under whatever name it may be, of gratuity, of 
Christmas box, of discount^ of percentage, of capitation 
fee), has it a tendency to blind the eyes of the receiver, 
to make him less vigilant for his master than he ought 
to be— to look with more favor on the giver than on others 
who are not givers of like gifts t If this tendency be found 
to exist, the transaction is to be condemned — ^however inno* 
cent may have been the intentions of the donor, however un* 
tainted may have remained the mind of the recipient 

This is indeed the legal attitude toward such trans- 
actions, especially if a positive law already exists 
which forbids them on account of the presumption of 
fraud. But the moralist must not confound things 
so diflferent aB the tendency to produce evil and evil 
itself, especially as the strength of the tendency may 
vary almost indefinitely according to character and 
other circumstances. However, if this be allowed 
for, the moralist's attitude toward such transactions 
will not differ widely from the lawyer^s, for he will 
recognize them as full of danger, and to be avoided by 
all who wish to escape the snares of sin. The confes- 
sor then will dissuade his penitents from such trans- 
actions in the future, but, unless it is clear that in- 
justice has been done by them in the past, he will 
abstain from imposing any obligation to make resti- 
tution to the employer. 

The agent must not buy or sell for himself what he 
has been engaged to buy or sell for his principal, with- 



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142 SECRET COMMISSIONS IN TRADE 

out that principal's knowledge and consent. Law and 
conscience are here almost at one. The doctrine may 
be illustrated from the Beport of the London Cham- 
ber of Commerce, p. 13. 

The leading case which illustrates the rule forbidding 
an agent for sale to purchase for himself, or an agent for 
purchase to sell his own property to his principal without 
full disclosure, is Brookman vs. BothschUd [1829]. 
There the plaintiff employed the defendant to buy and 
sell foreign securities, and directed him to sell 20,000 
French Bentes. The defendant, without the plaintiff's 
knowledge, purchased these for himself and his partners, 
but gave the plaintiff the market price. The defendant 
then pretended to purchase Prussian bonds for the plain- 
tiff, but in fact the purchase was of the defendant's own 
bondSi remaining in the hands of the defendant and his 
partners, the plaintiff being debited with the market price 
and commission. Other similar transactions took place 
between the parties, and finally accounts were balanced, 
and the plaintiff paid the balance which appeared to be 
due from him. Pour years afterwards the plaintiff, hav- 
ing discovered the nature of the transactions, applied to 
the court to have them set aside and his money returned, 
and was successful 

As a general rule, at any rate, conscience should 
here follow law. Exceptions might be permitted where 
extraordinary diligence has been used by the agent to 
sell or buy in a better market; but even here, on ac- 
count of the danger, and because the agent's judgment 
can hardly be unbiased when his own advantage is in 
question, and he is not usually prepared to take both 
sides of the risk, the practice should be condemned. 

There are many cases where the only course open to 
an honest man is, at whatever cost, to take his stand 



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8B0BBT COMMISSIONS IN TRADE 143 

on the eternal and immntable principles of justice. 
In spite of the commercial corruption of our time^ in 
such cases honesty is still the best policy. Certainly 
this must be the maxim to be followed in cases like 
that mentioned by Lord Bussell in the speech by which 
he introduced his Bill dealing with secret commissions 
into the House of Lords on April 20, 1899. Lord 
Bussell said : — 

One of the most painful experiences which I have had 
professionally was at the Leeds Assizes, where I had to 
defend an old man who had been in business for something 
like fifty years. He was a member of the local Corporap 
tion. His son was succeeding him in business. He was 
charged at the Assize Court with having entered into a 
conspiracy with Lord Masham's foreman dyer to defraud 
Lord Masham, who is the head of a silk manufactory in 
Bradford, by invoicing goods which were never delivered, 
by invoicing inferior goods and charging the price of 
higher-class goods, and, occasionally, when they sent the 
best goods, by charging an excessive price for them. 
When I saw my client and his solicitor, I said, ''If the evi- 
dence as on the depositions comes out, the case is hope- 
less. How could a man holding a respectable position, 
and so long before the public, be a party to such transac- 
tions t" His explanation was a very pathetic one. He 
said he could not help it; that he was driven to it. It 
began first with small commissions, but gradually the 
screw was turned on, and his trade profit would have dis- 
appeared altogether if he had not fallen in with the ar- 
rangement. I asked him if he could not have gone to 
Lord Masham and told him. He said he could, but the 
result would have been that the foreman would have been 
dismissed, and another man put in his place; and if he 
had not made an arrangement with the new foreman, that 
man, when a vat containing perhaps £220 or £300 worth 



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144 SECRET OOMMISaiONa IN TRADE 

of stuflP was in the process of dyeing, would have put 
some noxious stuff into the vat, and would have said to 
Lord Masham, ''See the kind of drugs you are using. 
You will have to change your drug merchant.'' I do not 
believe that is at all an isolated case> 

The hardship endured or at any rate feared by the 
conscientious agent in such cases might often be miti- 
gated or removed if only the principal would conde- 
scend to take a little trouble in his own interests and 
for the sake of justice. In proof of this an example 
taken from the Eev. J. Carter's Commercial Morality 
may serve as a conclusion to this paper: — 

A short time ago, a friend of mine, a veterinary sur- 
geon, was requested by a coachman to put down half a 
dozen more horse-balls to his master; but he did not want 
any sent in, adding, ''Don't forget it is near Christmas!" 
The inference was clear. The balls were to be charged, 
and the money given to him. My friend consulted me 
about it, saying, "If I do not do it that beggar will get 
me out there somehow, either by complaining of the way 
I treat the horses or by some other cause ! " I replied, "It 
is your business to go to his master and report the matter 
to him." Nowj this veterinary was a young man who 
had just purchased a practice in our town, and had fairly 
high ideals of justice and truth ; but he was a Scotchman, 
and before all things he meant to get on. He took my 
advice, went to the gentleman, and told him. The gen- 
tleman was much annoyed at being bothered over such a 
matter. The coachman still holds his place, and my friend 
has ever since had the greatest difficulty in keeping the 
gentleman's custom. Now, when he hears me talking 
about what I think is right, he sits smiling, and concludes 
by saying, "Yes, you're right, but it doesn't pay."' 

*B. B. O'Brien's Life of Lord RusaeU of KUlowen, p. 800. 
6 Page 25. 



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IX 
DEALS IN OPTIONS AND FUTURES 

If a corn-merchant buys 100 quarters of wheat from 
a farmer who has just harvested them, he concludes 
with him a contract of sale " on the spot," the farmer 
undertakes to deliver the corn and the merchant un- 
dertakes to pay the price agreed upon. The com- 
merchanjt may wish to make sure of being able to ob- 
tain for his customers a constant supply of corn for 
the future, and so he approaches the farmer some 
months before harvest time, and enters into a bargain 
with him by which the latter binds himself to sell the 
merchant 100 quarters of wheat before the end of 
next September; the parties then conclude a future 
contract More specifically one is said to deal in 
" futures '' when the goods contracted for are not at 
the time of making the contract in the possession or 
ownership of the seller. And should the terms of the 
contract leave the choice to the seller either to deliver 
the stipulated quantity of wheat at a fixed price, or 
to pay the difference between the price agreed on and 
the actual market price when the term of the contract 
arrives, the contract is an *^ option." 

From such an "option" contract to mere "time 
bargains," or "difference transactions," or "mar- 
gins," is but a step. In these transactions real de- 
livery of goods to the buyer is not contemplated by 

145 



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146 DEALS IN OPTIONS AND FUTURES 

either party ; they merely make use of the market price 
of wheat, or cotton, or stocks and shares, or bacon, or 
other commodity, as matter for a wager. The par- 
ties to the contract enter into a speculation about the 
price of the article at a future date. A agrees to buy 
100 quarters of wheat from B three months hence 
at seven dollars the quarter. If at the date in ques- 
tion the price is higher than that agreed upon, the 
seller pays the difference; if on the other hand it is 
lower, the buyer pays. Such gambling transactions 
in wheat, cotton, securities, and various other com- 
modities are far more numerous on the world's Ex- 
changes than are ordinary contracts in which eflPec- 
tive delivery of what is bought and sold is con- 
templated. It is a subject of hot debate in the com- 
mercial world whether such gambling has a good or 
bad eflEect on genuine trade. There is, of course, a 
great increase of business for commission houses, 
brokers, and agents generally, resulting from ficti- 
tious bargains, and it is to be expected that such 
classes will be loud in defense of time bargains, or 
" options '^ and " futures,^^ as they are often indiflfer- 
ently and loosely called. On the other hand, pro- 
ducers of foodstuffs and manufacturers of raw ma- 
terial into cotton goods seem generally persuaded that 
their trade is seriously injured by gambling transac- 
tions on 'Change. 

Within the last few years several Governments have 
given serious attention to the question. Thus on 
July 8, 1897, Mr. Bankhead introduced into Congress 
a Bill regulating the sale of certain agricultural prod- 
ucts, and imposing taxes on " options'' and "fu- 



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DEALS IN OPTIONS AND FUTURES 147 

tnres,^ and on dealers in them. Another Bill with 
similar scope was introduced into Congress on Decem- 
ber 4, 1899, by Mr. Terry. Bills for preventing and 
penalizing dealings in cotton " futures " and future 
contracts in agricultural products have still more 
recently been submitted to Congress. 

Among the nations of the Eastern Hemisphere spe- 
cial laws against gambling in " futures ^' have been 
passed within the last few years by Austria, Norway, 
and Germany. The history of this legislation in Ger- 
many is specially interesting. The financiers of Ber- 
lin had incurred the enmity of the conservative ele- 
ments in the German Reichstag. The Agrarians at- 
tributed the fall of prices in agricultural products to 
the dealings in futures on the Berlin Exchanges; the 
Anti-Semites supported the Agrarians because the 
leading financiers were Jews; the Centre party gave 
its support because it feared the moral effects of un- 
bridled speculation. The result was the Exchange 
law of June, 1896. One clause of this law forbade 
dealings in options and futures in agricultural prod- 
uce. The financiers refused to submit to the law and 
attempted to open a private Exchange, where they 
might conduct their operations unfettered by any 
legal restraints. Litigation ensued with varying suc- 
cess, but after a struggle which lasted two years the 
Government gained the day, and the members of the 
Exchange submitted. The present state of the ques- 
tion is summed up in a report prepared by Dr. 
Schwabach, His Britannic Majesty^s Consul-General 
at Berlin, which is printed in a British Parliament- 
ary Paper issued at the beginning of this year on Leg- 



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148 DEAL8 IN OPTIONS AND FUTURES 

islative measures respecting gambling in ^^ Option ^^ 
a/nd '^ Future '^ contracts as regards foodstuffs, p. 24. 

The Exchange Law of June 22, 1896, prohibiting gam- 
bling in options and futures of agricultural produce in 
Germany remains still in force. Opinions differ widely 
as to the effects of the prohibition. Produce dealers, 
Chambers of Commerce, and other organizations of in- 
terests solely or chiefly commercial denounce the prohibi- 
tion as the direct cause of the increased dependence of the 
Oerman produce markets on foreign, especially American 
Produce Exchanges in the matter of prices, of the con- 
siderable fluctuations of com prices in German markets, 
and of the comparatively low prices for German produce. 
They maintain that these effects of the prohibition do not, 
however, affect exclusively, or even principally, the pro- 
duce dealer, but that they constitute a danger to German 
agriculture itself. They try to persuade their agrarian 
opponents that the re-establishment of the trade in options 
and futures would benefit the producer quite as much as 
the dealer. The Agrarians on their part deny that agri- 
cultural interests have suffered from the prohibition, while 
they express their satisfaction at the loss of business and 
influence inflicted through the prohibition upon the Ger- 
man Produce Exchanges, more especially the Berlin Pro- 
duce Exchange, which, in times previous to the Exchange 
Law, owed its great power to the very large business in 
options and futures. The advocates of the landed interest 
expressly devised and carried the prohibition as a means 
of breaking the powerful influence the Produce Exchange 
was able to exercise upon the price of agricultural pro- 
duce to the detriment, they maintain, of the producer. 
That the prohibition has proved a disadvantage to the 
producer himself, has been repeatedly and strongly de- 
nied by agrarian members of the Imperial Diet. They 
have, on the contrary, declared themselves completely 
satisfied with the effect of the prohibition. They main- 



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DEAL8 m OPTIONS AND FUTVBB8 149 

tain that since gambling in options and fatnres had been 
prohibited, com prices in Qermany were remarkably free 
from the fluctuations experienced in foreign markets gam- 
bling in options and futures, that prices in (Germany were 
much steadier than in such markets, that prices for Ger- 
man com were by no means lower than in other countries 
or for foreign produce, and that producers did not expe- 
rience any difSculty in disposing of their com. Statistics 
are freely used on both sides to support these widely di- 
vergent views, and it would be hard to say where truth 
lies. 

The commercial interests in and outside the Imperial 
Diet continually urge the revision of the Exchange Law 
and the repeal of the gambling prohibition, while their op- 
ponents strictly preserve their uncompromising attitude, 
and as they are in a majority, the Oovemment does not 
seem to consider an attempt at revision possible or ex- 
pedient. Neither the deliberations of the Exchange Com- 
mittee which was convened by the Imperial Chancellor 
in June, 1901, nor a conference which took place in Sep- 
tember, 1901, between the Prussian Minister of Commerce 
and delegates of the commercial and agricultural interests 
to consider certain amendments of the Exchange Law, have 
led to further action on the part of the Oovemment. 

It may safely be presumed that while without any 
doubt the 'cute brethren of the Berlin Exchange know 
what is for their advantage^ the no less well-informed 
members of the German Diet^ who succeeded in pass- 
ing this law and maintaining it, in spite of powerful 
and vigorous opposition^ know what is for the interest 
of the agriculturists of the country. 

However, besides the political and financial aspects 
of the question, there is also the moral aspect Is 
dealing in futures morally wrong? Let us study this 
question from the point of view of moral theology. 



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150 DEALS IN OPTIONS AND FUTURES 

There is no theological difficulty about a bona fide 
contract for future delivery of goods^ even though the 
seller has not present possession of them. He knows 
that he can get the goods before the time arrives when 
he will be bound by his contract to deliver them to the 
buyer; he hopes to be able to get them at a cheaper 
rate than he charges. All this is lawful trade; there 
is nothing in the transaction that need cause him any 
qualms of conscience. But if there is question of a 
mere speculative contract in futures, and the inten- 
tion of the parties is merely to bind themselves to pay 
differences, one may well hesitate before giving a 
definite solution of the problem. 

Such a contract is merely a wager, as we have seen ; 
it is in itself to all intents and purposes a bet concern- 
ing a future and uncertain event, and the question as 
to whether it is lawful or not depends on the broader 
question concerning the lawfulness of betting. An 
action may be lawful in itself, in the abstract, apart 
from special circumstances, and yet in the concrete, in 
certain circumstances, it may become wrong. It will 
be advisable to consider the lawfulness of difference 
transactions first of all in themselves, and subse- 
quently as they are met with in practice. The ques- 
tion resolves itself, as we have seen, into the broader 
one of the lawfulness of betting. 

Now, it is commonly taught that it is not wrong to 
make a bet, provided certain conditions are fulfilled. 
Among those conditions the principal are : — 

1. That the money risked belongs to him who bets, 
and that he has the free disposal of it 

A lawyer must not bet or speculate with the money 



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DEALS IN OPTIONS AND FUTUBB8 151 

of hifl client; if he does so^ he exposes the property of 
his client to risk, and sins against justice. The 
mon^ risked in betting must also be at the free and 
unfettered disposal of him who bets. He must not 
bet with what is necessary to folfil his obligations, 
otherwise he exposes himself to the danger of not be- 
ing able to meet them. A father of a family mnst not 
bet with what is required for the support of his chil- 
dren, else he runs the risk of not being able to fulfil 
his natural duty of bringing them up in a manner 
suitable to their condition in life. 

2. Betting, to be lawful, must be free from fraud 
and deceit. 

The event on which the wager is ventured must be 
uncertain to both parties. If the uncertainty exists 
only on one side, if it is brought about by means of 
false rumors and news, if by dexterous manipulation 
one of the parties intends to decide the event in his 
own favor, the wager is a dishonest contract 

3. Finally, the chances must be fairly equal on both 
sides. The sharper who abuses the ignorance and 
simplicity of the countryman, can make no claim to 
have come by his gains honestly. He is a rogue and 
a vagabond. 

A wager that fulfils the above conditions is not a 
sinful transaction. But though this may be true, yet, 
as is well known, a habit of gambling is easily con- 
tracted; and when such a habit has once been formed, 
it is very difficult to shake it off. There may be a 
certain amount of temporary success; the excitement 
and fascination which gambling has for many minds; 
the ease and rapidity with which large sums of money 



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152 DBAL8 IN OPTIONS AND FUTURES 

may sometimes be acquired by this means, — all lend 
their attraction, and combine to make what in itself, 
if indulged in occasionally, may be a legitimate form 
of recreation, a most dangerous temptation, and the 
sure road to ruin. 

If we apply this doctrine to the question before us, 
we are compelled to admit that a deal in futures in 
itself is not wrong if it is accompanied by the condi- 
tions laid down above, but that it is wrong if any of 
those conditions is wanting. However, even though 
the requisite conditions may be present, it is a danger- 
ous pastime, and should be discouraged, like any 
other form of gambling, in the interests of public and 
private morality. 

But what is to be said of dealing in futures not in 
itself and in the abstract, but in the concrete, as it is 
carried on in the Exchanges of the great commercial 
centers of the world? 

As we have partly seen already, many men of ex- 
perience maintain that difference transactions exert 
a beneficial effect on trade. It is claimed for them 
that they equalize prices and steady them, so that they 
are not exposed to such great and rapid fluctuations 
as they would be if left to the law of real supply and 
demand. There must of course be a close relation 
between actual prices at which a commodity is sold 
and the fictitious price which formed the basis of the 
** futures ^ contract The parties to such a contract 
must be presumed to know something about the prob- 
abilities of the case; we must suppose that they are 
acquainted, for example, with the world's consump- 
tion of wheat, if they intend to speculate in that com- 



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DEALS IN OPTIONS AND FUTURES 153 

modity; they know approximately too the yield of 
wheat for the year; they are acquainted with the 
elaborate statistics on the subject, which have been 
drawn up by economists for past years, and so they 
have before them the main elements which are re- 
quired to enable them to form a good estimate of the 
price of wheat at a given future time in any particu- 
lar market. That estimated price will have a great 
effect in fixing the actual price, for selling prices de- 
pend not only on actual supply and demand; they 
are also largely influenced by prospective considera- 
tions as to what is likely to be the supply and demand 
in the future. 

Moreover, the market for futures is practically 
world-wide. The telegraph puts all the great centers 
of commerce in close communication with each other 
throughout the Old and the New World, and makes 
one universal market of Exchange dealers in securi- 
ties, corn, cotton, and other commodities. The low- 
est rate at which an article is sold will fix the market 
price, and so the lowest price at which wheat is sold 
in any of the markets of the world, will have its effect 
in lowering the prices elsewhere. Especially will this 
be the case as buyers and sellers in futures do not 
contemplate actual delivery, and so they can afford 
to disregard costs of transport, custom dues, and 
similar charges. Thus the contention that dealing in 
futures equalizes and steadies prices seems reason- 
able; and, furthermore, it is claimed that this con- 
tention is borne out by experience. 

Again, it is also contended that futures are a useful 
and ready means of insuring buyers against loss, and 



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154 DEAL8 IN OPTIONS AND FUTURES 

SO help trade. A dealer^ for example, contracts to 
supply 100 quarters of wheat to a customer of his on 
such a day at seven dollars the quarter. If when the 
date arrives wheat sells at eight dollars the quarter, 
the dealer loses on his bargain. He desires to insure 
himself against such loss, and he has the opportunity 
afforded him by the market in futures. By buying 
a similar quantity of futures to be delivered on the 
same date, he will gain on this transaction what he 
loses on the other by the rise in price. 

All this may be true, and if taken together with the 
fturt that futures add enormously to the volume of 
business transactions, there is abundant explanation 
of the favor shown to futures by commercial men, and 
especially by those connected with the Exchanges. 

On the other hand, producers and consumers alike 
seem generally to have made up their minds that gamr 
bling in futures has a disastrous effect on trade. 
Competitors are almost indefinitely multiplied; the 
area of competition is vastly enlarged ; and producers 
of wheat, for example, in countries where land and 
labor are dear, where taxes are burdensome and skies 
unpropitious, find themselves forced to compete with 
others who live under opposite conditions. Tariffs 
may remedy the evil to a certain extent as far as effec- 
tive contracts which contemplate actual delivery are 
concerned, but they cannot shut out the subtle influ- 
ences of gambling transactions. 

In addition to this, gambling in futures falsifies 
prices. In a healthy condition of the market, the 
price of an article will depend on the costs of produc- 
tion and the law of supply and demand. As long as 



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DBAL8 IN OPTIONS AND FUTURES 155 

these factors dominate the situation, producer and 
consumer can satisfy themselves that they have full 
value for their goods or for their money. But when 
natural prices are interfered with from without by 
speculators who do not contemplate effective delivery 
of commodities, and who are only interested in differ- 
ences, effective dealers can have no security that they 
get full value in their transactions. Prices are falsi- 
fied and markets are reduced to an unnatural condi- 
tion. 

It is sometimes argued in answer to this that the 
fictitious demand and supply of the speculators bal- 
ance one another, and so leave the market of effective 
supply and demand unaltered. This, however, is 
notoriously not the case; the frequent " comers '* in 
wheat, cotton, and other commodities, whether they 
succeed or not to the satisfaction of those to whose 
operations they are generally due, show at least that 
the ** bears " and the " bulls '' are not evenly matched, 
but that one party has secured a temporary advan- 
tage, with the result that great loss and suffering is 
caused to others. These considerations seem fully to 
justify the Agrarian party in Germany in their de- 
termined opposition to gambling transactions in agri- 
cultural produce. In practice those transactions 
have a deleterious effect on genuine trade, and so 
they do harm to the prosperity of the country. 

There are also some more general considerations 
which cannot be overlooked by the moralist. Bet- 
ting, as we have seen, is not in itself unlawful, pro- 
vided it is accompanied and safeguarded by certain 
conditions. When, however, it becomes a habit and 



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156 DEALS IN OPTIONS AND FUTURES 

degenerates into gambling, our verdict in ordinary 
cases must be different The question bears some 
analogy to that of drink. Provided strong drink be 
taken at the proper time, and in moderation, with 
dne care to ensure our being able to keep control over 
our appetite, it will not do the ordinary healthy sub- 
ject any harm. But if strong drink is indulged in 
too freely, if it is taken at all times and begins to usurp 
the place of solid food, harm more or less serious is 
the consequence. So too with gambling ; if it becomes 
a passion, if the gambler seeks to make it a substitute 
for honest toil, and strives to make it support him or 
bring him wealth, serious harm has already been 
done. The gambler produces nothing; he adds noth- 
ing to the wealth of the community ; he soon learns to 
shun honest work; he becomes a parasite who preys 
on society, and eventually brings ruin on others as 
well as on himself. So that dealing in differences, even 
if r^arded merely as a form of gambling and specu- 
lation, must fall under the censure of the moralist 
But in practice the transaction is not a mere specu- 
lation. When large gains or losses depend on fu- 
ture market prices, there is a very great temptation 
for all whose fortunes are at stake to take means to 
influence the market in their own favor. Great 
financiers, who have immense resources at their com- 
mand, or combinations of smaller moneyed men have 
means at their disposal by which they can raise or 
lower the market price of a commodity to suit their 
own interest. " Bigging the market,^' as the process 
is called, has been reduced to a fine art, and by this 
art dealers in futures strive to influence in their own 



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DEALS IN OPTIONS AND FUTURES 157 

favor the future event on which the bet depends. 
This is against the rules laid down above, whose ob- 
servance is necessary if betting is to be an honest 
transaction. It is like backing my horse against 
yours in a race, and then bribing your jockey to hold 
back your horse, or to drug him when the race be- 
comes due. It is a dishonest trick and against the 
fundamental laws of the game. The sober and well- 
weighed words used by Sir E. Pinlay, the Attomey- 
Oeneral of England, in the House of C!ommons, when 
commenting on the Whitaker Wright case, deserve to 
be quoted in this connection. As reported in The 
Times (London), February 3, 1904, he said: — 

Whitaker Wright was, as is well known to the House, 
the managing director of the Globe Company. The Qlobe 
Company was a company which carried on a highly spec- 
ulative business. In the year 1900 it had got into very 
great difficulties, and Whitaker Wright, on behalf of the 
company, engaged in an enterprise which was intended to 
restore its fortunes. That enterprise was this — ^he en- 
deavored to establish what is called a corner on a very 
large scale in the shares of a company called the Lake 
View, a comer in Lake View Consols; and the particular 
operation that he was engaged upon was this— he entered 
into contracts for the purchase of Lake View Consols on 
a very large scale, and at the same time he was taking 
measures to secure that the very shares which he was buy- 
ing should be tmder his control, so that many of the sellers 
to him would have to go to him when the day for delivery 
came and give him any terms he chose to ask for in order 
that they might be in a position to fulfil the purchase. 
That was the operation. If that operation had succeeded, 
as it very nearly did succeed, the fortunes of the Olobe 
Company would have been, to a very great extent, re- 
trieved. It failed. , The enterprise in itself w;as, in my 



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158 DBALB IN OPTIONS AND FUTURES 

yiew, contrary to every soxuid code of commercial moral- 
ity. I believe that it is an absolutely immoral thing for a 
man to enter into a transaction of that kind when he is 
buying and at the same time is taking steps to prevent 
those from whom he is buying from being able to fulfil 
their contracts, except by submitting to any terms he may 
choose to dictate. Further than that, I have no doubt 
whatever that such an enterprise falls within the range 
of the criminal law if it is carried out by several persons 
in combination, at least if any circumstances of misrepre- 
sentation attend it. 

This deliberate judgment pronounced by one fully 
cognizant of the nature of such transactions is only 
that of common sense and common honesty. 

But it would be a comparatively small matter if the 
evil connected with gambling in futures were confined 
to the parties immediately concerned in the transac- 
tion. Unfortunately, too often many good and inno- 
cent people, who never dream of speculating on 
'Change, suffer loss from the operations conducted 
there. A rise or fall in the price of wheat means for 
the operator the winning or the losing of his bet^ but 
for many a farmer a fall in the price means that he is 
robbed by the " bears '' of the fruit of his toil ; it may 
mean the bankruptcy and ruin of many a respectable 
family. On the other hand, a rise in prices means an 
additional hardship on the poor, a greater difficulty in 
many a household in making ends meet, a robbing of 
many a poor family of the staff of life. 

On many grounds therefore the verdict of the moral 
theologian on the question of the lawfulness of dealing 
in futures must be that in practice the transaction 
is immoral and wrong. 



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THE MORAL ASPECT OP COMMERCIAL 
« STOCKWATERING '' 

In the number of The American EcclesioBtioal Re- 
vieto for December^ 1907, the Rev. J. A. Ryan com- 
plained that the ethics of business did not receive ade* 
quate treatment in the current manuals of Moral 
Theology. Among the questions which he singled out 
as either receiving no attention at all or not sufficient 
attention he instanced ^^ stockwatering, and its mani- 
fold causes, characteristics, and effects/'^ I pro- 
pose in this paper to make an attempt to supply the 
deficiency of the text-books in this particular re- 
spect 

It seems to me that the main difficulty in these 
questions for the moralist is to get a clear idea of the 
operation in question. If he can do this, his knowl- 
edge of the general principles of justice and charity 
will enable him to decide whether the operation is 
morally wrong or not However, the difficulty is a 
real one, for the ordinary student of moral theology 
is not a business man, and he cannot be expected to 
know all the latest devices by which rogues and 
swindlers strive to attain their ends. By the time 
that any particular device is sufficiently well known 

I Page 658. 

159 



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160 THB MORAL ASPECT OF '' 8T0CKWATERING'* 

to be inserted in a text-book of moral theology it will 
of coarse so far be useless for the purposes of the 
swindler, who will abandon it for less obvious and 
more efficient methods. In spite of this, however, it 
may be worth while to discuss the morality of stock- 
watering, for even devices that are hoary with age 
are often successful still, and the borderland between 
the operation that may be permitted and what must 
be forbidden is not always obvious. 

To water stock then is, as the Century Dictionary 
tells us, to increase the nominal capital of a corpora- 
tion or company by the issue of new shares without a 
corresponding increase of actual capital. Stock- 
watering then is an operation connected with the 
working of joint-stock companies. Most modem 
States have what are called in England Company 
icts, and in the United States Corporation Laws, 
which enable a number of people who conform to the 
regulations laid down to constitute themselves into a 
corporate body for some definite object, with definite 
legal rights and obligations distinct from those of the 
individual members of the corporation. A joint- 
stock company usually owes its existence to the enter- 
prise of the promoter. He hears of a mining prop- 
erty or of a printing business which is for sale, and 
obtains a contract or an option from the owner. He 
procures the requisite number of persons to sign the 
Memorandum and Articles of Association and regis- 
ters the documents with the Registrar of Joint-stock 
Companies. After these preliminaries have been 
duly executed, the certificate of incorporation is 
issued and the new company is bom to work the mine 



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TSB MORAL ASPECT OF ** 8T00KWATERING*' 161 

or to manage the printing business. A prospectus 
may then be issued describing the objects of the new 
company and inviting the public to subscribe for 
shares and become partakers of its fortunes. The 
Memorandum of Association is the charter of the new 
company and^ besides other matters^ it must contain a 
statement of the amount of capital with which the 
company is registered divided into shares of a certain 
fixed amount. The amount of capital mentioned in 
the memorandum is the nominal capital of the com- 
pany and may be widely different in amount from its 
actual capital. Thus the promoter of a banking busi- 
ness who wishes to impress the public with the idea 
of the vast scale on which it is proposed to transact 
business, may put down |10,000,000 as the capital of 
the company, divided into shares of |50 each. It 
may happen that only ten shares are issued and that 
these are only half paid up. Thus although the 
nominal capital of the company is 110,000,000, its 
actual capital is only |250. 

We have described in rough outline the formation 
of a joint-stock company according to English law 
and although the details of American law differ some- 
what from the above, still the broad features are 
similar, and what has been said will suffice for our 
purpose. This much concerning the flotation of com- 
panies had to be premised, for it is precisely in this 
matter of nominal capitalization that stockwatering 
and over-capitalization takes place. Authorities are 
not quite agreed as to what should be the norm for 
regulating the amount of a company^s capital. The 
question is of special importance in those States 



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162 THB MORAL ASPECT OF ** 8T0CKWATBRING'' 

which have legislated against over-capitalization; 
there especially it is necessary to have a recognized 
standard for the legal capitalization of corporations. 
Bnt what is that standard to be? Is it to be the total 
original cost of the undertaking and actual invest- 
ment from the outset; or what it would cost to replace 
the plant under present conditions; or the structural 
value, value, that is, for service and wear; or the 
market value of the enterprise if it were sold in open 
market; or, finally, its earning capacity? To show 
how widely estimates may vary according as one or 
other of these standards is taken as the basis of reck- 
oning, we quote from Mr. W. Z. Ripley, Professor of 
Political Economy at Harvard, the leading case of the 
Interstate Consolidated Railroad Company. Pro- 
fessor Ripley says : 

Operating both in Rhode Island and Massachusetts, it 
had obtained a charter from the former State with the 
right to issue stock and bonds to the amount of $650,000. 
It then applied to the Railroad Commission for authority 
to issue this amount under the Massachusetts charter as 
well. The original capitalization of a defunct predeces- 
sor had been $875,000, of which only about $470,000 rep- 
resented the actual investment, the remainder being water. 
Owing to the fall in prices of electrical equipment, it was 
established that the plant could be duplicated for about 
$400,000. Its present structural value was estimated to 
be not over $255,000, while the price paid for it at pub- 
lic auction by its then present holders was $152,000. Ex- 
cluding the possible basis of capitalization upon earn- 
ing capacity, which ranged upon estimate from nothing 
to $900,000, which of these other standards, between 
$470,000 and $152,000, ought rightly to be applied t » 

9 Trusts, Pools, and Corporations, p. 130 (1905). 



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TSB MORAL ASPECT OP "^ 8T00KWATBRINQ** 163 

Oerman Company Law adopts the first of these, 
the original and total cost, as the legal standard of 
capitalization. At first, as Mr. Bipley shows, 
lyfassachnsetts adopted the same standard. It was 
felt, however, that there were grave objections against 
this method. Large sums of money were sometimes 
spent foolishly or even dishonestly in fioating com- 
panies; large expenditure was often incurred in 
^^ kissing" bills through legislatures. Sometimes 
fancy prices have to be paid for vested interests, or 
in the consolidation of companies — become neces- 
sary for effective working — small local undertakings 
have to be bought out at exorbitant rates. As Mr. 
Bipley says: 

These fundamental objections against original invest- 
ment as a basis for capitalization have led to general ac- 
ceptance of the cost of present reproduction in its place. 
This is the norm usually accepted by judicial appraisers, 
as in the recent case still pending in the courts, concerning 
purchase by the city in 1895 of the Newburyport water- 
works. It seems to have been adopted also in appraisal 
of the Milwaukee street railroads in 1898 as well as in 
Detroit. It is the one recognized by the Massachusetts 
Railroad comnussioners in their regulation of capitaliza- 
tion. The Oas and Electric Light commissioners in the 
same State also adhere to it closely in fixing the price of 
product.* 

English opinion favors the estimated earning ca- 
pacity of the undertaking as a basis for capitalization. 
If the undertaking will give a fair and reasonable in- 
terest on the money sunk in it so that the reasonable 
expectations of the shareholders who bought shares 

^Loo. cit, p. 133. 



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164 THE MORAL ASPECT OF " 8T0CKWATERIVQ " 

are not disappointed, it is thought that there can be 
no question of over-capitalization. A moralist would 
have no difficulty in approving any one of these rec- 
ognized standards as a basis for capitalizing a com- 
pany. Provided that the shareholders get fair value 
for what they contribute according to their reason- 
able expectations, and the creditors of the company, 
if there are any, are not wronged, and no harm is 
done to others, it is a matter of indifference to the 
moralist what may be the basis of capitalization. 
The moralist of course cannot tolerate over-capitaliza- 
tion, or capitalization largely in excess of what is 
right and proper according to any fair standard what- 
ever. The practical evils of over-capitalization which 
make it necessary for the moralist to condemn the 
practice may be summed up in the words of Professor 
Bipley. He says : 

Over-capitalization is one of the most frequent, time- 
honored and persistent charges brought against indus- 
trial combinations and against corporations particularly 
as distinct from other forms of business organization. The 
general public avers, in behalf of its interest as consumer, 
that while of course there is no direct relation between 
capitalization and prices, an excess of securities craving 
dividends is in itself an indirect incentive to unreasonable 
charges. An even more cogent objection than this is that 
the absence of any direct relation between investment 
value and the volume of stocks and bonds confuses all 
parties concerned. This was an underlying motive in the 
enactment of the Massachusetts Anti-Stock- Watering Laws 
of 1894. For a divergence between the actual property 
value and capitalization may lead to exorbitant prices and 
dividends at the expense of the public. It invites un- 
earned profits on the part of promoters leading to cor- 



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THE MORAL ASPECT OF ** BTOOKWATERHIQ** 165 

porate organization or financial readjustment in unneces- 
sary or nnmerited instances. It stimulates extravagance 
on the part of banking syndicates in the prices offered 
or paid for constituent companies. It facilitates internal 
mismanagement, even promotes actual fraud, by the ease 
with which the most alert stockholders may be confused 
as to the real standing of their own company. And 
finally it invites speculation and stock market jobbery 
among the public by the relatively small capital necesh 
sary to deal in, or acquire control of, considerable blocks 
of stock.^ 

Moreover, when a concern is largely over-capital- 
ized its peal value is obscured and there is no ade- 
quate security either for the creditor or for the share- 
holder. A few large dividends of an inflated com- 
pany are no adequate security for the creditor; he 
must rest for his final security on the permanent and 
real value of the concern. It is obvious that the 
shareholders who have contributed their money in ig- 
norance of the wide difference between the nominal 
and the actual capital of the concern are wronged, 
for only the actual capital can furnish them with the 
dividends, the expectation of which induced them to 
purchase shares. We are now in a position to study 
the morality of stockwatering in particular cases. 

English law permits the promoter of a company to 
fix the nominal capital at any figure he pleases. A 
fee which rises progressively with the amount of cap- 
ital must indeed be paid on registration, but the small- 
ness of this fee is but a slight obstacle in the way of 
an enterprising promoter who for one reason or an- 
other over-capitaUzes his company. The same is prac- 

4lrOO. dU, p. xxiiL 



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166 THE MORAL ASPECT OF ** aTOOKWATBRING** 

tically true of many of the States of the Union. To 
qnote again from Professor Bipley: 

Among oar American commonwealths the most flagrant 
examples of unlimited capitalization occur under the laws 
of West Virginia, Delaware, and New Jersey. In the first 
of these no limitation whatever is placed upon stock issues 
beyond payment of a small registration tax. The Dela- 
ware constitution follows the usual statutory enactment 
of other States, prohibiting all issues of stock except for 
money paid, labor done, or property actually received. 
The absence of all administrative control, and the ap- 
parent failure of the State courts to rule adversely, natu- 
rally renders this law of no effect. New Jersey has met the 
issue adroitly. Its Corporation Act, as revised in 1896, 
recites that ^'nothing but money shall be considered as 
payment of any part of the capital stock"; except that 
any corporation may purchase property by the issue of 
securities, in which case "the judgment of the directors 
as to the value of the property purchased shall be con- 
clusive."* 

We have seen what standard Massachusetts adopts 
for the legal capitalization of public service corpora- 
tions; for business corporations the Massachusetts 
Business Corporation Law, 1903, adopted the theory 
that " so long as incorporators are not acting fraudu- 
lently they may capitalize any properly, tangible or 
intangible, at any amount they desire, provided that 
no stock may be issued at or after organization until 
a statement has been prepared and placed upon public 
record, showing the amount of stock which has been 
issued and the exact manner in which it is paid for.'* • 
Similarly, the English Companies Act, 1900, relies 

s Loc. oitf p. 122. 

• W. Z. Ripley, loc. oit., p. 389. 



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THE MORAL ABPBOT OP **8T00KWATaRINQ'' 167 

on publicily as a safeguard against over-capitalisa- 
tion. By that Act the prospectus of any company, 
which offers shares to the public for subscription, 
must among other things contain ** the names and ad- 
dresses of all vendors of property purchased by that 
company, together with the amount payable in cash 
or shares to the vendor, and where there have been a 
succession of vendors, then the amount paid to each; 
the amount payable for good- will (a frequent excuse 
for concealed fraud) is to be set out particularly: 
the sum paid as commission for procuring subscrip- 
tions, for preliminary expenses, and generally any- 
thing paid to the promoter must also be clearly speci- 
fied, and, finally, the dates and parties to every ma- 
terial contract entered into during the previous three 
years, not being a contract made in the ordinary 
course of business, must be set out, together with the 
place where such contracts may be inspected.'^ ^ 
These provisions are hardly adequate to protect in- 
vestors against the evil of stockwatering. A common 
practice of company promoters is thus described by 
Mr. Montague Barlow in the volume from which we 
have already quoted: 

In fhe normal course a promoter finds a flourishing in- 
dustrial concern worth, say, £10,000, and decides to float 
it as a company for as much more as he can get; he 
obtains from the proprietors a contract to sell for £10,000; 
he then forms a small syndicate which is registered as a 
company; and purports to sell to it the contract or option 
at an enhanced price, say, £50,000 ; the syndicate next sells 
to thtf person who is to appear before the public as the 

T Bl Barlow ap. Bipley, too. cit, p. 423. 



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168 THE MORAL ASPECT OF *" 8T0CKWATER1VQ'' 

vendor of the business, again, of course, with an advance ; 
probably by this time we have got to £100,000 ; and lastly, 
the nominal vendor pnrports to make what is called a 
provisional contract with another dummy called the 
trustee for the company, subject to adoption by the com- 
pany; by this time we are in the region of high finance, 
and the price may be anything up to seven figures. The 
promoters thus keep piling up profits on each transaction, 
and the so-called contract with the Efyndicate, with the 
nominal vendor, and the provisional contract with the 
trustee for the company are obviously not real contracts, 
all these persons being the nominees of the promoters.* 

The English legal attitude towards transactions of 
this nature is thus described in the Report of Lord 
Davey's Ck>mmittee on the Companies Acts which was 
issued in 1895: 

If all this were done openly and the persons who are 
asked to subscribe were made acquainted with the real 
situation, and were told that the so-called vendor is a man 
of straw, and that the so-called contracts are only ma- 
chinery for securing payments out of the company's money 
to the promoters and underwriters and their friends, there 
could be no legal objection. If people with knowledge 
of the facts like to embark on an undertaking for which 
they are paying, say, twice as much as the real and 
present owners of it are willing to sell it for, they may be 
wise or unwise, the speculation may turn out well or ill, 
but it is their own i^air.* 

Whatever be the legal attitude towards such trans- 
actions, the moralist must condemn unreservedly the 
selling of property to the public at a price several 
times above its value, and he cannot accept the plea 

• Loo. dt., p. 417. • Page xl. 



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THE MORAL ASPECT OF *" 8T0CKWATERING** 169 

that subscribers knew or might have known what they 
were doing. As a matter of fact the large majority 
of subscribers are incapable of forming a judgment 
on the merits of the case even if they had the docu- 
ments before their eyes; and on account of distance, 
or for other reasons, they cannot take the trouble even 
to look at them. They rely on the good faith of the 
promoter and of the directors, and these take the op- 
portunity to rob them. Even a sound concern which 
would pay a good dividend on a fair capitalization 
can only hold out a promise of loss and ruin to those 
who have subscribed to a capital many times the value 
of the property. 

The normal method of watering the stock of a new 
company which was described above may vary almost 
indefinitely in its details, but the malice of the op- 
eration remains the same; the operators obtain pos- 
session of other people's money without having any 
just title thereto ; they are guilty of injustice and must 
make restitution of their ill-gotten wealth. The same 
must be said of the crude device of issuing additional 
stock and then only applying part of the proceeds, or 
perhaps none at all, to the purposes of the company, 
but dividing them among the operators. Little better 
from the moral point of view is all stockwatering 
which lowers the value of the stock of the present 
holders without their consent or compensating ad- 
vantage or necessity. 

If the principles of moral theology require us to be 
uncompromising in these and similar cases, they al- 
low perhaps of greater indulgence in certain other 
cases where individual rights are not infringed, though 



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170 THE MORAL A8PECT OF ** 8T0CKWATBRING'* 

the law of the country may be violated. In some 
States, as in Massachusetts, there are anti-stockwater- 
ing laws which bind at least public service corpora- 
tions, and there is a legal limit to the amount payable 
in dividends, usually 8 per cent We will select from 
Professor Eipley's book a few examples of the devices 
adopted to evade such laws as these. 

Probably, the commonest of these is by the payment to 
shareholders of so-called stock dividends. These consist 
either of an outright bonus of new shares of stock or 
bonds, or in a mitigated form as stock sold below par or 
at less than market quotations. Such ^^melon-cutting/' 
in the parlance of Wall street, may range as high as 100 
per cent., as in the Adams Express Company dividend 
of 1898. The notable Boston and Albany distribution of 
State stock in 1882 is a familiar example. This crudest 
form of inflation of capital, whether up to or beyond the 
increasing value of the plant, is the easiest to control 
directly. . . . Another somewhat more subtle mode of ac- 
commodation of capitalization to enhance revenue poten- 
tial, since it may not really augment the volume of se- 
curities outstanding, is to substitute stock issues for 
funded debt. The tendency in this direction seems to be 
very marked at the present time among the strongest of 
the American railroads, such as the New York Central, the 
Pennsylvania, the Central of New Jersey, New York, New 
Haven and Hartford, and others. In some of these, out- 
side of Massachusetts, the primary motive would seem to 
be to take advantage of rights to issue securities at par, 
where market value is high. But in addition there would 
seem to be the advantage of great elasticity in future 
dividend possibilities, within the same limits of total cap- 
italization. Thus a substitution of possibly 8 per cent, 
stock for present 4 per cent, bonds clearly permits of the 
absorption of greater earnings to be derived in future. 



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TSB MORAL ASPECT OP "* 8T0CKWATEBING** 171 

The advantages of stock issaes over bonds in the way of 
elasticity downward is of course always to be added; as 
they permit of a cessation of dividend burdens during 
periods of depression. Probably for this reason the ten- 
dency of most reorganization schemes seems to have been 
in the direction of retirement of bonds in favor of stocks. 
. . • The gradual accumulation of a surplus, either by 
good management or by exceptional opportunities fol- 
lowed by a petition for its capitalization into stocks or 
bonds, constitutes one of the most troublesome problems in 
any attempt at strict regulation. For, as will readily be 
observed, in so far as such a surplus— either in the form 
of cash, of securities of other companies, or of additions 
to the original plant — ^represents augmented investment, 
it would seem to offer a proper basis for addition to cap- 
italization. It cannot be denied that in this case the 
property has enhanced in value. Unfortunately for the 
company, however, a surplus stands too often in the pub- 
lic eye as witness to abnormal and undeserved earnings 
in the past. In those commonwealths which once pro- 
vided in their early railroad charters for escheat to the 
State of all earnings in excess of a certain amount, usually 
10 per cent; or those like Massachusetts which under the 
recent law of 1898 provide for a special tax upon dividends 
of street railways in excess of 8 per cent, such a surplus 
may denote an actual evasion of legal liabilities.^^ 

Expedients of this sort will be of practical impor- 
tance only where the law of the country restricts cap- 
italization or the amount payable in dividends on 
investments. We assume of course that such laws 
are just^ and good citizens will endeavor to conform 
their conduct to the laws of their country. It may 
be that a larger percentage than is allowed by law to 
be paid in dividends would be the fruit of extortion 

10 Loc. cit., p. 139 ff. 



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172 TRE MORAL ASPECT OF *' STOCKW ATE RING'' 

and unjust dealing on the part of the corporation, and 
if this be so the shareholders will have no right to the 
excess which is the fruit of injustice. Such excess is 
due to those who were wronged and from whom it 
was extorted, and it must be restored to them. More- 
over, if the limit in the amount of the dividends al- 
lowed by law was accepted by the corporation and 
formed part of the conditions of incorporation it must 
of course be adhered to like all other contracts law- 
fully entered into. If however the above expedients 
are not productive of injustice or hardship to the pub- 
lic or to individuals, whether belonging to the corpo- 
ration or not, but are merely illegal, the question for 
the moralist will be — What is the obligatory force of 
the laws which prohibit them? This will chiefly de- 
pend upon the intention of the legislator, and as mod- 
em civil legislators as a rule have no intention of 
making their laws rules for the individual conscience 
we shall be safe in saying that they do not bind un- 
der pain of sin. In so far then as the expedients de- 
scribed above and others similar to them are merely 
against positive law they will be illegal, but not nec- 
essarily and always sinful. 

The same decision will be given with respect to an- 
other operation described by. Professor Eipley: 

Next in importance to the conversion of a surplus into 
stock as a means of increasing capitalization is the expedi- 
ent of funding contingent liabilities or a floating debt. . . . 
The creation of such a floating debt may sometimes serve 
as a means to the enlargement of capitalization. This 
would seem to have been the case of late with public serv- 
ice corporations in Massachusetts, particularly the electric 



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THE MORAL ASPECT OF ** 8T0CKWATERING*' 173 

light and power companies. Denied the expedient of sur- 
plus conversion into stock, both by the public policy al- 
ready discussed and by the great depreciation in the cost 
of equipment, recourse has most naturally been made to 
the opposite expedient. Almost ten years ago the Gas 
Commissioners called attention to the desire on the part of 
companies managed by men of a speculative turn of mind 
to cover all expenditure for construction by issues of inter- 
est-bearing scrip." 

Of course if contracts are broken or the rights of 
shareholders or others violated by such a transaction 
it will be sinful, but in itself it would appear not to 
be so necessarily, however much it may be against 
the law. Any operation which lowers the interest 
on any particular stock or which affects its value 
must have the consent of the stockholders, otherwise 
it will do them an injury and therefore be sinfuL 
This remark applies to a couple of operations de- 
scribed by Professor Ripley. The first 

consists in gerrymandering the constituent companies, so 
that those strong ones oppressed with surplus earnings may 
have aggr^^ted about them the roads which are less fa- 
vorably situated. The claim is openly made that the 
Massachusetts Electric Companies, composed of forty odd 
suburban traction lines, is having its membership so dis- 
tributed in three main groups, each to be separately 
operated, as to effect this end. Thus the Lynn and Boston 
road earning perhaps twice its legally allowed dividend of 
8 per cent, is made to average up its earnings with a num- 
ber of small roads which are scarcely meeting operating 
expenses. The result is a 6 per cent dividend upon their 
united capital, with a net yield to shareholders far in excess 
of that contemplated under the law of 1898. The other 
11 Page 144. 



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174 TEE MORAL ASPECT OF ** 8T0CKWATEBING** 

stookwatering device attendant upon consolidation consistB 
merdj in the sabstitation of a high-grade for a low-grade 
security. For example, a weak company whose stock is 
quoted at 50, is merged in a second operating ccnrporation, 
with stock, bid, we will say, at 200. This latter company 
issues new stock worth $200, share for share, in exchange 
for the $50 stock, which is thereupon canceled.^' 

The same judgment applies to another operation 
also described by Prof. Bipley : 

The final method of evasion of anti-stockwatering statutes 
is found in the creation of independent finance corpora- 
tions to which the operating company may be leased, sold, 
or trusteed. Thus in 1893 the Brooklyn City Railroad 
Company, operating with horse-power, was capitalized at 
$6,000,000. At that time its power was transformed to 
electricity; and, as has be^i customary in such cases, the 
opportunity was seized for an increase of stock and bonds 
to $18,000,000. Simultaneously, the road was leased to 
the Brooklyn Heights Railroad Company, a tiny corpora- 
tion operating only a mile of track and capitalized at 
$200,000. This company agreed to meet interest charges 
upon $6,000,000 of bonds and to pay 10 per cent upon the 
$12,000,000 of stocks of the leased company. Finally, in 
the same year, the Long Island Traction Company, incor- 
porated under the laws of West Virginia with $30,000,000 
capital, purchased the stock of the intermediary, — ^the 
Brooklyn Heights Company, — ^in order to absorb such sur- 
plus revenue as might remain over and above its obliga- 
tions to the primary and sole operating concern. Thus 
was a fivefold increase of capitalization up to the desired 
figure finally effected.^* 

From what has been said it is obvious that stock- 
watering is a term which is applied to many different 

isLoa o(t,, p. 146. i«Loc. cit., p. 146. 



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TSB MORAL ASPECT OP ** STOOKWATBBiyQ" 175 

operations of widely different moral quality. What 
has been said will perhaps make it easier for the stu- 
dent of moral theology to decide on the moral quality 
of any particular operation that he may meet with. 



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XI 
BANKRUPTCY AND CONSCIENCE 

Casuistry is a word with a rather bad connotation 
in the English language. Its secondary meaning, ac- 
cording to the Century Dictionary, is "over-subtle 
and dishonest reasoning.'' I am not concerned to 
deny that there may be good historical grounds for 
something of the evil reputation which the word pos- 
sesses. It is apt to be associated in men's minds with 
the tortuous reasonings of the Scribes and Pharisees, 
with their exaggerations of lighter duties and their 
explaining away of the weightier matters of the law. 
Their desire to make the yoke of the moral law in 
certain places more easy for men's shoulders may 
also have had its parallel among some Catholic the- 
ologians; not every Catholic theologian catches or 
represents the mind of the Church. 

Still, casuistry should not suffer for the sins and 
errors of some of those who have cultivated the sci- 
ence of conduct Not all who profess themselves 
mathematicians or physicists write wisely about those 
branches of knowledge, and yet mathematics and 
physics are not held responsible for their vagaries. 
Neither should the great and useful science of casuis- 
try suffer because some casuists have by their labors 
endangered the supremacy of the great moral law. 

It is difficult to see how any one who admits that 

176 



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BANKRUPTCY AND CONSCIENCE 177 

there are moral laws or rules of conduct, can reason- 
ably refuse to admit a science of casuistry. Anarchy 
and confusion would quickly prevail in a country 
where the interpretation of the laws was left to the 
judgment or caprice of private citizens. Well-trained 
and practised intellects are required if law is to be 
applied with justice, equity, and consistency to par- 
ticular cases. And so, too, in morals, or the science 
of right and wrong, the ordinary Christian cannot 
be expected to apply correctly the rules of Christian 
conduct to all cases as they arise. He may be able 
to see, without much difficulty, what the noble, self- 
sacrificing line of conduct would prescribe in any 
given case; but that may not be what he is prepared 
to do. It would doubtless be best if we all on all 
occasions followed the counsels of perfection, but 
there is no obligation of so doing, and while human 
nature remains what it is, there is no likelihood of 
the attempt being generally made. And so the ques- 
tion constantly arises in daily life — What am I 
bound to do under these circumstances? What must 
I do to avoid moral guilt? 

Such questions are frequently of great difficulty 
and intricacy, as every one will acknowledge. The 
judgment of the expert is not less required to solve 
them, than it is required to solve the nice points of 
the civil law. This, then, is what the Catholic moral 
theologian proposes to himself to do. He tries, by 
taking the Gospel and the Church as his guides, to 
draw the line between what is lawful and what is un- 
lawful. He does not take upon himself the office of 
the preacher, and recommend all to follow the de- 



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178 BANKRUPTCY AND CONSCIENCE 

cifidons he gives. This he no more thinks of doing 
than does the judge while sitting in his Court It is 
not for him to raise as much as possible the standard 
of Christian conduct^ or to make people better than 
he found them. He is content with the humbler task 
of laying down what is forbidden and what is not for- 
bidden^ and leaving to others the nobler office of trac- 
ing the deeds that are becoming to the generous and 
the self-sacrificing. 

Much of the abuse which has been heaped on Cath- 
olic and especially on Jesuit casuistry originated from 
not considering this scope which moral theologians 
proposed to themselves, and the point of view from 
which they regarded questions of morality. Most of 
the great writers on moral theology have been men 
of saintly lives, who never dreamed of being content 
in their own conduct with attaining the standard of 
morality which they kept before their minds in their 
writings. There they laid down the principles of 
right and wrong, discussed real or imaginary cases 
with all conceivable manner of circumstances in order 
to illustrate those principles, but they never dreamed 
of limiting their personal aspirations to the mere 
avoidance of evil. They well knew that we must aim 
high to attain even a passable mediocrity in conduct, 
and in many cases they were men who were not con- 
tent to aim high, they aspired to and attained a great 
measure of Christian perfection. As in their own 
lives, so in their training of others, they did not pro- 
pose the moral standard of their works on casuistry 
as the ideal of the Christian life. It was the least 
that was required, it was the line below which no one 



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BASKRVPTCY AND CONSCIENCE 179 

who wished to save his soul might sink^ though he 
might rise indefinitely above it, according to the gifts 
which he had received from God. 

And let no one say that such work as the moral 
theologians of the Catholic Church have set them- 
selves to do is useless or unnecessary. It has always 
had the encouragement of the Church, though some 
of the sectaries who broke from her at the time of the 
Reformation affected to despise and repudiate it. 
They professed to take as their guide the spirit of the 
Gospel as interpreted by the individual conscience, 
and they professed to look down upon the ecclesias- 
tico-legal view of morality as one of the errors of 
Bome. However, the whirligig of time in this as in 
so many other departments seems to be proving that 
the action of the Catholic Church was and is right 
after all. Good and able men among the non-Cath- 
olic religious bodies are realizing the necessity of a 
sound casuistry as a guide of Christian conduct. Thus 
in the January number of the Hibhert Journal, in an 
interesting symposium on the " Alleged Indifference 
of Laymen to Religion," Sir Edward Russell, the well- 
known editor of the Liverpool Daily Post, writes : — 

Is there any obvious disconnection, more conspicuous 
among Christian than among members of other faiths, be- 
tween their religion and their practically unavoidable daily 
lives t The reply is twofold: Firstly, this ought not to 
be. . . . But, on the other hand, secondly, an uncomfort- 
able, illogical, unintelligent state of conscience is main- 
tained by the growing up of, and acquiescence in, customs 
of buskiess, practices of speculation, usages when in dis- 
tant countries, and non-moral rules of peace and war and 
acquisition — ^to instance a few examples. Efforts should 



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180 BANKRUPTCY AND CONSCIENCE 

be made by Christian authorities to formulate and apply 
ethical Christian dicta in such matters. This would need 
to be done with great care, and with specially cultivated 
sound casuistry. But it ought to be done, because "what- 
soever is not of faith is sin/' and laymen know they cannot 
serve two masters. (P. 246.) 

This is well put, and justifies in a few words what 
Catholic moral theologians are constantly striving to 
perform according to the constantly changing wants 
of the Catholic clergy and people. 

Very little experience within or outside the confes- 
sional soon convinces the Catholic priest of the prac- 
tical necessity of a competent knowledge of casuistry. 
It is not sufficient for practical purposes to know the 
general theory of Christian morals. The judgment 
must have been trained by exercise, so as to be able 
to apply with accuracy the general doctrines to par- 
ticular questions as they arise. 

Some years ago a friend I had known at college 
called on me. He held a responsible position in one 
of the great Manchester places of business. In course 
of conversation he asked me what I was doing. " Try- 
ing to teach the moral theology of the Catholic 
Church,'^ I modestly answered. "Oh!'' he replied, 
"I am often puzzled by questions which I suppose 
you have to treat of in your official capacity ; " and 
straightway he proposed a few. The questions were 
practical cases of conscience arising out of modem 
business relations, and it may be of interest if I put 
down here the result of thought and reading bestowed 
on them and other similar questions. I will deal in 



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BANKRUPTCY AND C0N80IBN0B 181 

this paper with some difficulties arising out of the 
law of bankruptcy. 

John was a younger member of a family that had 
always tried to cut a figure in the world. The mem- 
bers of the family had been accustomed to live up to 
the very limit of their means, and John, who was a 
dashing and handsome young man, after marrying a 
wife of similar disposition to his own^ set up an es- 
tablishment for himself. John and his wife soon 
found that it was impossible to make ends meet with 
their limited resources, and in the space of a very 
few years they had been adjudicated bankrupt no less 
than three times. The worthy couple did not trouble 
themselves much about the matter; the only incon- 
venience to their mind lay in the fact that they found 
it more and more difficult to obtain credit Even this 
difficulty, however, was to a considerable extent over- 
come by judicious changes of residence; they found 
that people who knew them only imperfectly were very 
confiding in the matter of loans to such an engaging 
and well-connected couple, and so they had a tolerably 
merry time of it; in short, they made bankruptcy 

pay- 
It is obvious that John and his wife had been living 
largely at the expense of their too confiding creditors ; 
.they had been doing wrong in contracting debts which 
experience taught them there was little probability 
of their being able to pay, and if they want to lead 
honest lives they must lower their style of living and 
try to balance expenditure with income. 

A difficulty may arise about the time of declaring 
one's self unable to pay one's debts. It is sometimes 



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182 BJLNKRVPTOY AND 00N80IBN0B 

possible by borrowing again and by other means to 
avert threatened bankruptcy for a time at least Is 
it lawful to have recourse to such means? 

The answer to be given to this question will depend 
upon circumstances. If there is any reasonable prob- 
aldlity of being able to meet the new obligation at 
the proper time, there need be no scruple about con- 
tracting it, and saving one's self from bankruptcy. 
If, however, there is no reasonable probability of being 
able to do this, it becomes a fraudulent contract, — 
the debtor undertakes to do what he knows he will 
not be able to fulfil, and so he sins against justice. 
As to what constitutes a reasonable probability is a 
question which depends upon the circumstances, and 
it must be settled by the debtor himself, after taking 
the advice of his friends, if he cannot make up his own 
conscience on the point 

Thomas was a man of about sixty years of age, and 
for some time he had not been able to give that at- 
tention to his business which was required if he was 
to succeed. In spite of all his efforts he sank deeper 
into debt, failed to meet his obligations as th^ be- 
came due, and was adjudicated a bankrupt He was 
afraid that he would be left destitute, so he kept back 
|500 for his private use, but surrendered all his other 
property to his creditors. He swore that he had 
made a full and true statement of his affairs, though 
he made no mention of the |500. 

Thomas did wrong in keeping back and rendering 
no account of the |500, and he committed perjury by 
swearing that he had given a true account of his af- 
fairs. The law makes provision for the necessary 



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BANKRUPTCY AND 00N8CISN0S 183 

eapport of the bankrupt, and so there was no solid 
ground for Thomas' fear that he would be left desti- 
tute, and consequently no good ground for failing to 
account for the fSOO. 

However, if the law made no provision for the nec- 
essary and immediate wants of the bankrupt, and if 
he had no prospect of being able to earn enough for 
his decent support and that of such as were dependent 
on him, so that the only prospect before him was to 
starve or to go to the workhouse, natural equity would 
then redress the too great rigor of the law, and permit 
the bankrupt to keep what was necessary for decent 
support An unfortunate debtor cannot be justly 
compelled to reduce himself to destitution in order to 
satisfy the claims of his creditors, and the laws of 
modem civilized nations do not attempt to impose 
such an obligation. 

The laws of bankruptcy in modem English-speak- 
ing countries are just and humane, and they confer 
a great benefit on the bankrupt by juridically reliev- 
ing him of an insupportable burden of debt They 
are, it is true, in some instances exacting with regard 
to the conditions on which the benefit is granted, but 
that is no more than the public good requires; grave 
abuses, as we know from the history of legislation 
in this matter, would inevitably result from a lax law 
of bankrupfy. It is only right then that stringent 
conditions should accompany the granting of relief 
to the bankrupt ; the State has a right to impose them, 
and the subject is bound in conscience to observe 
them, especially if he is required to affirm on oath that 
he has done so. The confessor then should urge a 



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184 BANKRUPTCY AND CONSCIENCE 

penitent^ who has had the misfortane to be brought 
into the Bankraptcy Cioart^ to act in a straightfor- 
ward way according to the laws of his country, and 
then he may with a safe conscience take advantage 
of what the law allows to the unfortunate bankrupt. 

George had invested large sums of money in house 
properly. He had borrowed a considerable portion 
of the purchase money under a well-grounded belief 
that the property would rise in value and enable him 
to reap a profit from his bargain. What was his dis- 
may when, instead of rising, it steadily fell; he could 
not realize any portion of it, and he saw no prospect 
of being able to pay his debts as they became due. 
In his straits he went to his brother, who was one of 
his principal creditors and asked his advice. His 
brother advised him to make a declaration of inability 
to meet his obligations, and that as soon as possible. 
(Jeorge promised to do so, volunteering to pay his 
brother in full beforehand, so that so much money at 
any rate should remain in the family, as he said. 
The brother agreed and took full payment for what 
was owing to him, although the other creditors had to 
be satisfied with fifty cents on the dollar. 

George committed an act of injustice by paying his 
brother's debt in full, while he knew that his other 
creditors would have to be satisfied with less than 
what was due to them. He knew that his property 
was not sufficient to pay all his creditors in full ; they 
had equal right to receive their due proportion of 
payment; he defrauded his other creditors of their 
due proportion when he gave more than his share to 
his brother, so as to keep the money in the family. 



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BANKRVPTOY AND C0N80IEN0B 185 

Such transactions are against natural justice, they 
tend to defeat the chief end of bankruptcy laws, which 
is to secure an equitable distribution of the property 
of the debtor among his creditors, and they are rightly 
forbidden by positive law. In England as well as in 
the United States such preferences are declared null 
and void, or at least voidable, if made within the 
period fixed by the law of the country. In the United 
States the period fixed is four months previous to the 
filing of the petition, in England three months. If 
it were discovered that such a fraudulent preference 
had been given to one of the creditors, the official 
receiver or the trustee in bankruptcy could claim the 
money and add it to the assets to be distributed among 
the creditors according to law. 

A doubt might arise as to whether a bankrupt 
would be justified in conscience in paying a creditor 
in full on account of his poverty or for some such 
extrinsic reason. Some theologians hold that, apart 
from any bankruptcy law, a debtor who could not pay 
all his debts might for such a reason prefer one cred- 
itor to another. However, it would seem to be un- 
lawful to do this when one contemplates bankruptcy. 
The law allows of no such distinction, and if the 
bankrupt is to take advantage of the law for his re- 
lief, it is imperative, even from the point of view of 
conscience, that he should conform to the require- 
ments and conditions which the law lays down. The 
law is his title to relief, and the law grants relief on 
certain conditions; those conditions then must be loy- 
ally observed by the debtor. 

There is another question of some nicety connected 



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186 BANKRUPTCY AND 00N8CIEN0B 

with fraudulent preferences. The bankrupt does 
wrong in giving such a preference, as we have seen. 
Is a creditor who receives a fraudulent preference 
justified in keeping the money, or is he bound to make 
restitution? 

There is some slight difference between the law of 
the United States and that of England with regard 
to fraudulent preferences, but we may here abstract 
from them, and consider the question from the purely 
moral point of view. 

Such a creditor will of course be bound to make 
restitution, if the matter comes to the knowledge of 
the Court, and he is ordered to do so. Whether he 
is bound in conscience independently of such an order 
to make restitution is not free from doubt He has 
after all only received what he had a right to, accord- 
ing to the terms of his contract with the debtor. The 
debtor did an injustice to his other creditors in pay- 
ing this one in full ; but the preferred creditor has no 
contract with the other creditors of the debtor; he is 
not bound like the debtor to safeguard their rights 
and satisfy their claims as far as possible ; if he has 
no such obligation, and only receives what is due to 
him from his own contract, he does not seem to violate 
justice by taking payment of his debt in full, and so 
he is not bound to make restitution. I am confirmed 
in this opinion by what Mr. Brandenburg writes in 
his authoritative work on Bankruptcy: — "There is 
involved,^^ he says, "no element of moral or actual 
fraud. It is simply a constructive fraud established 
by law upon the existence of certain facts and pro- 
hibited by it There is nothing dishonest or illegal 



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BANKRUPTCY A2fD C0N8CIENCB 187 

in a creditor obtaining payment of a debt dne him 
from a failing debtor ; nor in his attempting by proper 
and ordinary effort to secure an honest debt, though 
such act may afterwards become a constructive fraud 
by reason of the filing of a petition and adjudi- 
cation in bankruptcy/* ^ 

And again : ^^ While such a transfer is fraudulent 
and yoidable, it is not so because morally wrong, but 
because the act says it is.'* (P. 604.) 

Against this view it may be urged with some plaus- 
ibility that as the property of the bankrupt was not 
sufficient to pay all his creditors in full, no single 
creditor had a right to receive more than his just 
share, so that the preferred creditor sinned against 
justice by taking more than his share. To this, how- 
ever, it may be answered that the argument holds 
when the property has been divided into portions, and 
assigned to satisfy the claims of the several creditors; 
but that it does not hold while the property is still un- 
divided. When it is divided, each creditor has a right 
to his share, and injustice would be committed if he 
did not obtain his fair share; but while it remains, 
so to say, in bulk, all that can be said is that each 
creditor has a somewhat undetermined claim against 
the whole of the property. When therefore one cred- 
itor has received payment in full, it is not clear that 
he is bound in conscience, before any decision of the 
Court, to surrender a part for the benefit of the other 
creditors. 

Another question of importance is whether a bank- 

iB. C. Brandenburg, The Law of Bankruptcy, 8d ed., p. 609 
(1903). 



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188 BANKRUPTCY AND C0N8CIEN0E 

nipt who has obtained his discharge after paying his 
debts in part only, is bound in conscience to pay in 
full if he subsequently becomes able to do so. 

The question does not arise when the creditors in 
consideration of the part payment which they have 
received expressly release the debtor from all further 
obligations, as, of course, they are competent to do. 
It is clear, too, that the natural obligation, to pay 
one^s debts in full remains in spite of bankruptcy, 
unless it is extinguished by competent authority. 
Moreover, the obligation will certainly remain, if the 
law of the country expressly so decides, as did the 
Boman Law, which the scholastic theologians gen- 
erally had in view when they discussed this question. 
Most modern European codes contain similar pro- 
visions. However, it seems equally certain that the 
law of the country can extinguish the obligation of 
making further payments, if it pleases to do so in 
favor of an honest bankrupt. We say " in favor of 
an honest bankrupt,^' because the law does not intend 
to favor a dishonest bankrupt, nor has it the power 
to free such a one from his obligations. For the law 
cannot favor and promote injustice, as would be the 
case if it released a dishonest debtor from the obliga- 
tion of paying his debts. The law can, however, for 
the public good release the honest bankrupt; for with 
just cause it can transfer property from one to an- 
other owner. This it certainly does by the law of 
prescription, and in other cases. In a commercial 
community there will not be wanting good reasons 
for such an exercise of power, for a load of debt press- 



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BANKRUPTCY AND CONSCIENCB 189 

ing on the shoulders of the poor debtor kills enter- 
prise^ and injuriously affects trade. The common 
understanding with which debts are contracted will 
gradually accommodate itself to such a law, and thus 
by virtue of the implicit consent of the creditor, the 
legal discharge of the bankrupt debtor will be abso- 
lute and final, if the law so make it 

The whole question then is reduced to one of fact — 
What is the law of the country on the point, and what 
is its effect? With regard to the United States theo- 
logians have commonly held that a discharge in bank- 
ruptcy does not free the debtor in conscience from 
liability to pay his debts in full, if he subsequently 
become able to do so. However, several theologians 
of note thought the contrary a probable opinion.* 
Oreat weight should obviously be given in such a mat- 
ter to the opinion of lawyers of repute; they are most 
likely to know the effect of the law. Mr. Branden- 
burg, in the work quoted above, expressly lays it down 
that the United States Bankruptcy Law does not free 
the conscience. " Since the discharge," he writes, " is 
personal to the bankrupt he may waive it and, since 
it does not destroy the debt but merely releases him 
from liability — that is, removes the legal obligation 
to pay the debt, leaving the moral obligation unaf- 
fected — such moral obligation is a sufficient consid- 
eration to support a new promise,^' etc. (P. 257.) 

In England on the contrary both theologians and 
lawyers commonly hold that the law of the land frees 
the debtor in conscience, if the discharge be absolute 

s Marc, n. 1022 ; Kenrick, II., n. 207. 



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190 BANKHUPTCT AND COySOISyOE 

and unconditional.^ Otherwise, of course, the obliga- 
tion will remain. 

The same solutions would seem to hold, when after 
haying made a composition with one's creditors, the 
same question arises with r^ard to future acquired 
property. The law of the United States as well as 
that of England regulates such compositions, and de- 
cides that when confirmed they shall have the effect of 
a discharge. So that in the United States one who 
cannot pay his creditors in full, must make up the 
deficiency afterwards if he can, whether he makes a 
composition with his creditors or goes into the Bank- 
ruptcy Court ; in England, if he has acted honestly and 
obtained an absolute and unconditional discharge, 
there will be no obligation to make good any de- 
ficiency, though the conduct of a bankrupt who should 
volunteer to do so would be highly approved by his 
creditors. 

sCrolly, III., n. 1232; Stephen, II., p. 183. 



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XII 

MODERN SOCIOLOGY 

In his Hiitory of the Catholic Church in the Nine- 
teenth Century, Dp. MacCaffrey Bays very truly: — 
^* The development of sociological Btudies in the nine- 
teenth century has opened up a new field of inquiry 
for moral theologians, and has raised a host of new 
problems, which demand careful treatment/' ^ I un- 
derstand Dr. MacCaffrey to refer not only to socialism 
with all the problems connected with it, but to what 
professes to be the new science of sociology. Much 
of the interest taken in this new science may be at- 
tributed to a natural reaction from the now discred- 
ited doctrines of liberalism. The liberalism of the 
nineteenth century was above all things individual- 
istic. It admitted, indeed, the necessity of society 
or the State, but a cardinal point of its teaching in- 
sisted that State action should be restricted to the 
necessary defense of life and properly from violence 
and fraud. Although J. S. Mill thought these limits 
too narrow, yet he, too, maintained that with regard 
to State action, letting alone should be the general 
practice. "Every departure from it,'' he says, " un- 
less required by some great good, is a certain evil." * 
We have advanced very far indeed beyond this laissez 

iVol. II., 486. 

tPHficipJet of Political Bcofumy, Book V., e IL 

191 



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192 MODERN SOCIOLOGY 

faire theory of the powers of the State. The modem 
State not only educates the children of the people 
free of cost, but it is beginning to feed them as well 
and have them medically inspected. It grants pen- 
sions to the aged poor without regard to whether they 
have led thrifty lives or not. It unites and dissolves 
marriages, and indications are not wanting that in 
the name of eugenics it may some day endeavor to 
have a voice in determining who is to marry and who 
is to remain celibate. It takes a share of the un- 
earned increment of property, and Socialists wish it 
to assume the ownership of all productive property 
and of the means of distribution of wealth. The 
theory of the influence of society on the individual 
has more than kept pace with the State's inroads on 
his private life and rights. A modem authority on 
the subject says, in effect : " Instead of the old an- 
tithesis between the individual and society, modem 
science discovers a complete harmony between them. 
Neither could exist without the other. The science 
of the individual and the science of society are insep- 
arable; every philosophical and moral question will 
end by being a social question. The psychologist in 
studying the individual sees that his faculties and 
tendencies are a heritage from the race and the spe- 
cies, and so from society. What would be left of the 
individual if we took from him all that he owes to 
society? The moralist who without bia« tries to find 
a natural origin for the laws of his science discovers 
them in the general conditions of society, and the 
conditions of society are nothing but the conditions 
of physical and intelligent life. The whole universe 



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MODERN BOCIOLOQY 193 

is but one vast society in process of formation, and 
so social science, the crown of all the sciences, will 
one day disclose to us the secret of the universe.^' * 

Similarly, Mr. B. Kidd, one of the chief authorities 
on the subject in England, writes : " According to the 
old conception the meaning of society was to be 
reached through a study of the indiyidual. The study 
of the individual's mind and of the individual's in- 
terests constituted the science of man. Society was 
considered as an aggregation of these. Put equally 
briefly the meaning of the ruling conception of the 
new era in the application of the theory of organic 
evolution to society almost reverses this position. 
According to the new conception the individual is 
only to be understood through the meaning of the so- 
cial process. ... It is in the social process alone that 
we have the full meaning of man and of the laws 
which are governing his development. The social 
process has its own interests, its own experiences, its 
own laws, its own psychology, its own meaning. And 
it is this meaning of the social process which is every- 
where in the ascendant in history, controlling the 
meaning of the individual, slowly imposing itself upon 
his interests, and in the end completely governing his 
development. . . . The real truth is that it is the 
meaning of the social process which is constructing 
the human mind. This is the most pregnant idea in 
Western thought at the present time, and it is with 
preliminary aspects of it that recent developments 
like Pragmatism are beginning to be occupied.'' * 

« A. Fonlll^, La Science Sociale Contempcraine, Preface, p. vL 
* Principles of Western Civilization, 1908, pp. vll., vUl. 



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194 MODERN SOCIOLOGY 

Whereas, then, fifty years ago the tendency was to 
exalt the rights of the individual citizen at the ex- 
pense of the power of the State, nowadays the ten- 
dency is all the other way. What is called the mod- 
ern science of sociology throws light on this tendency, 
and so no apology is needed for treating the subject 
here. 

Sociology, as the word implies, is the science of 
man in society. Some, with Froude and Bangsley, 
whom Herbert Spencer endeavored to refute,* deny 
that such a science is possible. Of those who maintain 
its possibility and who have tried to formulate its 
principles, all admit that the science does not exist 
as yet It is as yet in the analytic stage in which 
the phenomena belonging to the science are being ob- 
served, collected, and compared. A few empirical 
laws have already been formulated, but it cannot be 
said that there is anything like general agreement on 
a complete and systematic body of sociological doc- 
trine. One sign of this incipient stage of the science 
is the number of different systems which are in vogue. 
Mr. Lester P. Ward, in a recent work, enumerates 
twelve of these, and adds another of his own to the 
number.® For the purposes of this paper we may 
divide the diflferent systems into objective and sub- 
jective. The objective are materialistic while the sub- 
jective are idealistic or pantheistic. The former de- 
rive their descent through Herbert Spencer from 
Comte, and they are much more popular and widely 
diffused than the latter. Comte, as is well known, 

B TTie Studf/ of Bodology, p. 37. 
« Pure Sociology, London, 1909. 



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MODERN SOCIOLOGY 195 

divided the history of philosophy into three periods^ 
the theological, the metaphysical or critical, and the 
positive. During the first period, which lasted till 
the dawn of the Protestant Reformation, natural 
phenomena were explained by the agency of super- 
natural beings. This theological explanation was 
discredited by the metaphysical or critical school, 
which followed it, but however powerful criticism 
proved as a solvent, it was incapable of building up 
a system which could be generally accepted. To do 
this was reserved for the third period, the truly sci- 
entific period, which rests its doctrines on the firm 
basis of exact observation of certain and verifiable 
facts. The last and the most general of all the posi- 
tive sciences, according to Comte, was social physics, 
a new science, which he was the first to call by its 
name — sociology. Herbert Spencer adopted the name 
and much of the teaching of Comte about the new 
science. He tells us that " His [Comte's] mode of 
contemplating the facts was truly philosophical. Con- 
taining, along with special views not to be admitted, 
many thoughts that are true as well as large and 
suggestive, the introductory chapters to his Sociology 
show a breadth and depth of conception beyond any 
previously reached. Apart from the tenability of his 
sociological doctrines, his way of conceiving social 
phenomena was superior to all previous ways.'^ ^ 

However, as Comte lived in pre-Darwinian days, 
the dogma of fixity of species to which he adhered kept 
his conceptions of individual and social change within 
limits much too narrow, says Spencer. Then he adds : 

T Tlie Study of Sociology, p. 325. 



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196 MODERN SOCIOLOGY 

" Nor did he arrive at that conception of the Social 
Science which alone afSiliates it upon the simpler sci- 
ences — the conception of it as an account of the 
most complex form of that continuous redistribution 
of matter and motion which is going on universally. 
Only when it is seen that the transformations passed 
through during the growth, maturity, and decay of a 
society, conform to the same principles as do the 
transformations passed through by aggregates of all 
orders, inorganic and organic — only when it is seen 
that the process is in all cases similarly determined 
by forces, and is not scientifically interpreted until 
it is expressed in terms of those forces — only then is 
there reached the conception of Sociology as a sci- 
ence, in the full meaning of the word." ® 

There we have, stated in plain, bald language, the 
fundamental postulate of modem sociology. All that 
man is or does, whether individually or in society, is 
the result of the necessary transformations of matter 
and motion. When the Greeks fought at Marathon 
and when Bismarck dispatched the Ems < telegram 
which precipitated the Franco-German war, their ac- 
tions were as inevitably determined by the forces of 
nature as are the waters which flow over Niagara. 
The different forms which human society assumes, the 
various constitutions and laws under which men live, 
their religious, political, and social ideas are as truly 
the necessary product of the evolution of matter and 
force, as are the various forms into which matter 
crystallizes. There is no science of society in the 
strict sense unless its phenomena are interpreted in 
« TJie study of Sociology^ p. 325. 



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MODERN SOCIOLOGY 197 

the light of this fundamental postulate. That is why 
the labors of Plato, Aristotle, Cicero, and other philos- 
ophers of antiquity who wrote works on the State, 
are dismissed as pre-scientiflc, and as scarcely worthy 
of notice. St. Augustine, St Thomas Aquinas, and 
the other schoolmen, are not thought worthy even of 
being mentioned in an historical survey of writers on 
sociology. The situation is sufficiently remarkable^ 
and would hardly be credited by one who had not read 
the authors in question. It is also of great impor- 
tance, for it is already b^inning to produce its inevi- 
table effects in several directions. Mr. Lester F. 
Ward, in his Applied Sociology, published in 1906, 
calls attention to one important result He writes: 
'^ On the part of scientific men the study of evolution 
in general, and social evolution in particular, has 
given rise to a sort of scientific pessimism. . . . The 
latest teachings of modern science have thus thrown 
a sort of i>all over the human mind and introduced a 
new philosophy — a philosophy of despair, it may be 
called, because it robs its adherents of all hope in any 
conscious alteration of the course of nature with re- 
spect to man, and denies the efficacy of effort.^' ® 

Another important result is the support which this 
materialistic doctrine of society gives to the princi- 
ples of socialism. Marx and his followers made great 
use of the doctrine. 

I have no intention of undertaking here a refuta- 
tion of this materialistic conception of the universe. 
The important thing to notice is that it is taken for 
granted in modem sociology, and that no other philos- 

» Op. cit, p. 14. 



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198 MODERN aOClOLOQY 

ophy of the world is accepted as scientiflc. In spite 
of the testimony of Lord Kelvin and many other sci- 
entists of the highest standing, the action of a Crea- 
tor is quietly ignored. To bring in the action of a 
supernatural Being is to revert to the infancy of hu- 
man speculation. As I have said, the extent to which 
this materialistic explanation of society has been car- 
ried would hardly be credited by one who had not 
read the authors in question. In some of them the 
doctrine is more or less veiled, but in others it is set 
forth with unblushing frankness. It will be worth 
while to take a few representative writers on sociology 
and allow fhem to expound the principles of the sci- 
ence as far as possible in their own words. 

And, first of all, I will quote a few passages to show 
that I am doing modem sociology no injustice when I 
say that it has been monopolized and developed by 
writers who are not only evolutionists, but upholders 
of the mechanical theory of evolution. 

Mr. P. H. Giddings writes : " Since Comte, sociol- 
ogy has been developed mainly by men who have felt 
the full force of an impulse that has revolutionized 
scientific thinking for all time to come. The evolu- 
tionist explanation of the natural world has made its 
way into every department of knowledge. The law 
of natural selection and the conception of life as a 
process of adjustment of the organism to its environ- 
ment have become the core of the biology and the 
psychology of to-day. It was inevitable that the evo- 
lutionary philosophy should be extended to embrace 
the social phenomena of human life. The science that 



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MODBBN aOOlOLOQY 199 

had traced life from protoplasm to man could not 
stop with explanations of his internal constitution. 
It must take cognizance of his manifold external re- 
lations, of the ethnical groups of the natural societies 
of men, and of all the phenomena that they exhibit, 
and enquire whether these things also are not prod- 
ucts of the universal evolution. ... On evolutional 
lines then, and through the labors of evolutionist 
thinkers, modem sociology has taken shape. It is an 
interpretation of human society in terms of natural 
causation. It refuses to look upon humanity as out- 
side of the cosmic process, and as a law unto itself. 
Sociology is an attempt to account for the origin, 
growth, structure, and activities of society by the op- 
eration of physical, vital, and psychical causes, work- 
ing together in a process of evolution." ^^ 

The distinction made here between physical, vital, 
and psychical causes must not blind us to the fact 
that according to the dominant school of sociologists 
all causes are fundamentally physical. As the same 
writer says in another place : *^ Social evolution is 
but a phase of cosmic evolution. All social energy 
is transmuted physical energy. The conversion of 
physical into social energy is inevitable, and it neces- 
sarily occasions those orderly changes in groupings 
and relationships that constitute development Or, 
if the statement may be made in slightly different 
terms, the original causes of social evolution are the 
processes of physical equilibration, which are seen 
in the integration of matter with the dissipation of 

^^ The Principle of SocMogv, p. 7 (1909). 



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200 MODERN SOCIOLOGY 

motion, or in the integration of motion with the dis- 
int^ration of matter." ** 

It follows from this that human societies are noth- 
ing but very complex machines, as Mr. Lester F. 
Ward expressly affirms. " In general/' he says, " it 
may be said that society as a whole, including all its 
structures and institutions, both general and special, 
constitutes a mechcmiam. The structures are not 
chaotic and haphazard, but symmetrical and sys- 
tematic. They conform to the universal law of evo- 
lution which creates the spheres of space and the 
adapted forms of organic life." " 

This mechanical theory of society implies, of course, 
that there is no such thing as free will. This is ad- 
mitted, and even insisted on, by the modem soci- 
ologist Mr. Lester F. Ward writes: "Sociology, 
therefore, can only become a science when human 
events are recognized as phenomena. When we say 
that they are due to the actions of men, there lurks 
in the word actions the ghost of the old doctrine of 
free will, which in its primitive form asserts that any 
one may either perform a given action or not, accord- 
ing as he may will. From this point of view it is not 
supposed that any event in human history needed to 
have occurred. If the man whose actions caused it 
had willed otherwise, it would not have occurred. 
That is, the old form of the doctrine of free will main- 
tained that men might have willed otherwise than 
they did. It is not merely that they might have acted 
differently if they had willed to do so, but that they 

IX op. cit, pp. 363, 364. 

It Outlines of Sociology, p. 170 (1909). 



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MODERN SOCIOLOGY 201 

might have willed to act diflPerently. If we substitate 
wish for will, as of course we may, since it is simply 
a peculiarity of the English language, that there are 
two words for the same thing which in other languages 
is expressed by the same word {volere, wollen, vou- 
loir, etc.) the doctrine becomes that men might have 
wished to act otherwise than they did wish to act. 
This is a violation of the metaphysical axiom of con- 
tradiction, or, as Sir William Hamilton more cor- 
rectly calls it, non-contradiction. That axiom is that 
a thing cannot both be and not be. In other words, 
the old-fashioned doctrine of free will assumes that 
men may act differently from what they do act irre- 
spective of character and environment If this were 
so, there could certainly be no science of action, no 
philosophy of history, no sociology. There would be 
no social phenomena, but only arbitrary actions due 
to no true cause, and all power of prevision or pre- 
diction would be wanting." " 

A German author, who wrote in the year of grace, 
1895, is quoted as the authority for this summary 
demolition of the doctrine of free will. No comment 
is called for. 

Mr. B. Kidd agrees that the sociological process is 
involuntary and necessary." 

Whether society should be called an organism, and 
of what kind, is largely a question of terminology. 
Spencer held that it is an organism of a very real 
kind. "Metaphors," he says, "are here more than 
metaphors in the ordinary sense. They are devices 

t^Pure Sociology, p. 57 (1909). 
14 Social Evolution, p. 41. 



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202 MODBRN SOCIOLOGY 

of speech hit upon to suggest a truth at first dimly 
perceived, but which grows clearer the more carefully 
the evidence is examined. That there is a real anal- 
ogy between an individual organism and a social or- 
ganism, becomes undeniable on observing that certain 
necessities determining structure are common to 
both/^ *' In other words he developed this idea and 
traced the analogy in minute detail and with much 
ingenuit^.^^ Mr. Oiddings seems doubtful as to 
whether society should be called an organism at all. 
At any rate, he says, it is not a physical, but a psychi- 
cal organism essentially, with a physical basis. Mr. 
Lester F. Ward admits that it is an organism, but 
one of the low and undeveloped type. He writes: 
*^ On any ^ social organism ' theory government must 
be regarded as the hram or organ of consciousness of 
society, and the small amount of ^ brains ' shown by 
government is simply in confirmation of the conclu- 
sion reached in another chapter that society repre- 
sents an organism of low degree." ^^ 

Whatever they may say about the question of 
terminology, the representative sociologists of this 
school agree that society is a product of the evolution 
of natural forces. These natural forces as productive 
of society are called " social forces," or " idea forces," 
though they are merely transformations of the one 
physical force which permeates the universe. They 
are sometimes called psychical, volitional, mental, 
and these terms might lead the unwary reader to think 

IS The Study of Sociology, p. 326. 

i« Prinoiples of Sociology, I., pt U., a 2 ; Bstaya, II., 148. 

ir Outlines of Sociology, p. 268. 



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MODERN 800I0L0GY 203 

that a spiritual explanation of society was mixed with 
the mechanical. This would be to misunderstand the 
doctrine altogether. It is obvious that what is called 
intelligence and affection play a large part in pro- 
ducing social phenomena ; but according to the writers 
whose views we are expounding^ both intelligence and 
affection are merely the manifestations of a very com- 
plex mechanism which is the evolutionary product 
of physical and chemical forces. On this point the 
modem sociologist has quite made up his mind. Mr. 
Oiddings says: ^^ The real question is not on the ex- 
istence or the importance of volitional and of dis- 
tinctively sociological causes. It is whether these are 
underived from simpler phenomena thai^ themselves, 
and are undetermined by processes of the physical and 
organic world. To this question the answer of so- 
ciology is an unqualified negative. Sociology is a 
product of those new conceptions of nature — natural 
causation and natural law — that have grown up in 
scientific minds in connection with doctrines of evolu- 
tion and the conservation of energy. . . . Therefore, 
while affirming the reality of sociological forces that 
are distinctly different from merely biological, and 
from merely physical forces, the sociologist is careful 
to add that they are different only as products are 
different from factors, only as protoplasm is different 
from certain quantities of oxygen, hydrogen, nitrogen, 
and carbon ; only as an organism and its co-ordinated 
activities are different from a group of nucleated cells 
having activities that are unrelated.'* " 

The course of the evolution of social forces into the 

K The Principles of BocMlogy, p. 416 ff. 



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204 MODERN SOCIOLOGY 

complex phenomena exhibited by human society has 
been worked out in great detail by Mr. Lester F. 
Ward in several of his works. He classifies the social 
forces into those that seek pleasure, avoid pain, the 
sexual and amative desires^ the parental and con- 
sanguineal affections, the sesthetic, emotional or 
moral, and intellectual forces. These forces gener- 
ate, preserve, and elevate society, and how they them- 
selves are derived from original physical forces is ex- 
plained in this way. 

The appetites or passions are the genetic source of 
all man's other faculties, the seat of all psychic power, 
the basis of any true science of mind and of sociology. 
Appetite or desire is a true vis a tergo, and acts by 
impact like any other physical and efficient cause. 
Thus an empty stomach necessarily impels the sen- 
tient being to seek the satisfaction of repletion. Sat- 
isfied desire causes pleasure, whose opposite is pain. 
Pleasure is good, it leads to an increase of life ; pain 
is evil and leads to extinction. While all creatures 
seek their good, or the satisfaction of their wants, 
natural selection eliminates those which are not in 
conformity with the conditions of existence, and de- 
velops those that are in conformity with them. These 
principles are verified throughout all non-rational 
nature, and their application to the problems of so- 
ciology is obvious." 

The chief difficulty arises in the explanation of the 
evolution of intellect. It may be admitted, says Mr. 
Ward, that as yet this is unknown. The following 
theory is offered as an hypothetical explanation of 

t9 OutUnea of BooMogy, p. 143 ff. 



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MODERN SOCIOLOGY 205 

the matter. Intellect is not a force but a directing 
agency. It arose in this way. External objects reg* 
ister their impressions on the sentient organs, and the 
gradual accumulation of a mass of such impressions 
and their simultaneously felt presence render it pos- 
sible to make comparisons and recognize differences 
and samenesses. Thus arises the intellectual process 
which is a perception of relations. Intellect thus 
enables the rational creature to perceive what will 
satisfy its wants, and if it cannot attain the satisfac- 
tion of those wants directly, it can perceive what 
means may be taken towards their satisfaction indi- 
rectly. Intellect can thus switch off the movement 
caused by desire of the end, and direct it to the attain- 
ment of the means by which the end may be finally 
secured. The evolution of this wonderful power of 
reason in man has given him command of the forces 
of organic and inorganic nature which he can use for 
the attainment of his ends. It has thus been the 
cause of his wonderful progress and of all the civiliza- 
tion to which he has attained.*^ 

Although my purpose in this paper is to show what 
modem sociology is rather than to attempt its refuta- 
tion, I cannot refrain from making a few criticisms 
of the system. We have seen that nothing but mat- 
ter and motion are postulated in order to explain the 
phenomena of sociology, and in fact everything else. 
When evolution begins motion is regarded as hitting 
out blindly in all directions. If it happens that one 
of these pulses of matter in some way secures an ad- 
vantage over others which tends to its preservation 

so OutUnes of Sociology, p. 240 ff. 



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206 MODBRN SOOIOLOGY 

and development, an upward stage in evolution has 
taken place. It was thus that the faculties of sensa- 
tion and of intellect w^re evolved. To quote Mr. 
Lester P. Ward : " There is no true economy in the 
operation of the law of nature. It is a sort of trial- 
and-error process and involves enormous waste. I 
have endeavored to formulate what may be called the 
law of biologic economics, with the result that while 
every creation of organic nature has within it the 
possibility of success, that success is only secured 
through the multiplication of chances. . . . This 
saves the expense of trying to go in all the impossi- 
ble directions with the resultant failure. Yet this 
last is nature's method. Not only must we conceive 
the effort as proceeding from the center of a circle, 
but we must usually conceive it as proceeding from 
the center of a sphere.^' *^ On another page of the 
same book Mr. Ward says : — ^^ It must be remembered 
that the intellect or telic power was developed as an 
aid to the will for the better satisfaction of desire. 
But for its value as such it could not have come into 
existence under the biologic law of advantage [Mr. 
Ward's term for natural selection]. It is as much 
a product of that law as any useful organ in an ani- 
mal or plant.** ** 

So that after all Democritus and Lucretius were 
right substantially ; this orderly world is the resultant 
of a fortuitous concourse of forces, if not of atoms. 
Chance has presided at all the steps that have been 
taken in the upward progress, and it rules the world. 
The latest phase of philosophy is a recurrence to that 

ai Ouilinea, p. 254. »« Outlinea, p. 247. 



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MODERN SOCIOLOGY 207 

with which it hegfOk. It is true that Mr. Ward af- 
firms that when reason appeared on the scene the 
primordial process of evolution was reversed. Up to 
rational man the environment had molded the course 
of development; when rational man appeared^ he be- 
gan to mold his environment to suit his needs and 
tastes. This is true; it shows how difficult it is for 
philosophy to stifle common sense; but Mr. Ward as- 
serts it at the expense of consistency^ for it is out of 
harmony with his system. If man is himself a bun- 
dle of physical and necessary f orces, his whole activity 
is merely the activity of those forces; every thought, 
wordy and action is the necessary outcome of their 
interaction. There is no room for and no possibility 
of a conflict between the forces of mind and those of 
nature. Other writers of the same school are much 
more logical than Mr. Ward. We may quote M. 
Durkheim, one of the best-known members of the 
school on the continent This author writes : ^ La 
civilisation est elle-m6me une consequence nteessaire 
des changements qui se produisent dans le volume 
et dans la density des soci6t6s. Si la science, I'art, 
Pactivite teonomique se developpent, c'est par suite 
d'une n^essite qui s'impose aux hommes; c'est qu'il 
n'y a pas pour eux d'autre manidre de vivre dans les 
conditions nouvelles ot ils sont places. Du moment 
que le nombre des individus entre lesquels des rela- 
tions sociales sont stabiles est plus considerable, ils ne 
peuvent se maintenir que s'ils se sp^ialisent da- 
vantage, travaillent davantage, surexcitent leurs 
facult6i; et de cette stimulation gto^rale r^sulte 
in^vitablement un plus haut degr^ de culture. De 



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208 MODERN SOCIOLOGY 

C6 point de vne^ la dvilisatioB apparait done, 
non comme un but qui meut les peuples par I'atr 
trait qu'il exerce sur eux, non comme un bien, 
entrevu et d^ir^ par avance^ dont ils cherchent k 
s'assurer par tons les moyens la part la plus large 
possible, mais comme I'effet d'une cause, comme la 
r^sultante n^cessaire d'un 6tat donn6. Ce n'est pas 
le p61e vers lequel s'oriente le d6veloppement his- 
torique et dont les hommes cherchent k se rap- 
procher pour 6tre plus heureux ou meilleurs ; car ni 
le bonheur, ni la morality ne s^accroissent n6cessaire- 
ment avec Pintensit^ de la vie. lis marchent parce 
qu'il faut marcher, et ce qui determine la vitesse de 
cette marche, c'est la pression plus ou moins forte 
qu'ils exercent les uns sur les autres, suivant qu'ils 
sont plus ou moins nombreux." ** 

Even more serious difficulties than a recurrence to 
a fortuitous concourse of forces are caused by the 
mechanical explanation of the gradations existing 
among creatures. As according to that theory all crea- 
tures are but different manifestations of the one uni- 
versal and physical force, it follows that life, sensa- 
tions, and intellect are nothing but different forms of 
motion among particles of matter. This, as we have 
seen, is not only admitted but insisted on, by the 
writers under review. It is admitted that the actions 
which we call vital, sensitive, and intellectual, are 
altogether different from, and in many ways opposed 
to, the actions of merely physical forces. It is ad- 
mitted that life has never been known to originate 
from merely physical forces, and that all attempts to 
^Dela Division du Travail Social, p. 327. 



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MODERN SOCIOLOGY 209 

produce it have failed absolutely. And yet mechani- 
cal evolutionists obstinately cling to their dogma. 
It has been so, because it must have been so, on the 
principles of evolution. To state the argument in 
Mr. Spencer's words : " If there has been Evolu- 
tion, that form of it here distinguished as super-or- 
ganic must have arisen by insensible steps out of the 
organic." ^* To help out the lameness of the argument, 
Mr. Ward appeals to what he calls scientific faith. 
"The theory of units," he says, "is applicable to 
every true science in proportion as it can be reduced 
to exact measurement. In mechanics, astronomy, 
and physics the phenomena can, for the most part, be 
thus reduced, but in the more complex sciences, at 
least in their present state, this can be done only to 
a limited extent. It must not, however, be inferred 
from this that exact laws do not prevail in these do- 
mains. They are as rigid here as in the simpler ones, 
and the only imperfection is in our knowledge of 
them. The acceptance of this statement is what con- 
stitutes scientific faith. Those who do not accept it 
and doubt the uniformity and invariability of natural 
law in the fields of life, mind, and human action, sim- 
ply lack faith in the order of the universe." ^ On 
a subsequent page the same author says : " In the 
advanced stages of human development when intellec- 
tual and moral influences have entered the field the 
case is still more complicated, but even then, if there 
is a social science, what I have characterized as scien 
tific faith, when it is fully developed, does not permit 

i^ Principles of Sociology, I., p. 4. 
S6 Outlines of Sociology, p. 141. 



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210 MODERN BOOIOLOQY 

any doubt to come in and qualify in the least the uni- 
versal law, and we must say, with Immanuel Kant, 
that if we could investigate all the phenomena of 
man's volition to the bottom, there would not be a 
single human act which we could not with certainty 
predict and recognize as necessarily proceeding from 
its antecedent conditions/'^® 

It is hardly necessary to point out how entirely un- 
sdentiflc this position is. Ridicule is poured, on the 
old philosophy and theology because, as it is asserted, 
they appealed to unproved and unverifiable dogmas. 
But here we have scientists appealing to faith, to un- 
proved and unverifiable dogmas to explain not what 
is mysterious, but facts which are absolutely opposed 
to the explanation. 

In the meantime great and irreparable harm is be- 
ing done in the field of practical conduct The au- 
thors whose teaching we are criticizing, maintain that 
religion and codes of morals have been invented by 
society in order to put a check on individualistic and 
destructive tendencies. It was necessary to cheat 
people into being self-restrained for the benefit of the 
race. But what infiuence are such lying checks likely 
to exercise when the deception has been discovered? 
Indeed, Mr. Ward himself openly abandons those 
old-world devices. He preaches the new gospel in 
this wise: ^^ But most important of all is the grow- 
ing sense of good which equally characterizes the 
progress of intelligence. Not merely does man more 
and more value life and shrink from pain, but he 
progressively enhances his estimate of enjoyment, and 

2« Outlines, p. 150. 



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MODERN 80CI0L0QY 211 

properly so. This is to him the only good, and hay- 
ing been developed as a correlate of function it is 
safe in the long run to trust it as the expression also 
of universal or cosmical good — or, if any prefer, of 
divine good. It has served this purpose well thus 
far, and upon those who deny it this function rests the 
burden of proof. What specially concerns the soci- 
ologist is the fact that with the development of the 
race more and more attention has been devoted to 
attaining the satisfactions of life, until these become 
in the most advanced societies the real if not the 
avowed ends of existence." ^^ 

So that Epicurus and the pig philosophy were 
right after all ! The truth is that the loud-sounding 
peeans about the utter change in man's outlook that 
has been brought about by the theory of evolution 
have been much overdone. Even if the evolution 
theory as distinguished from the mechanical theory 
of the universe be accepted, it leaves the old and 
fundamental questions untouched and unsolved. The 
inevitable reaction is already setting in, and this is 
beginning to be recognized by the best thinkers of the 
day. Thus Professor W. R. Sorley writes : " It is 
obvious that, in mentioning these points, I am refer- 
ring to matters of ancient as well as present con- 
troversy. On them I have no intention of dwelling, 
partly because the subject is so vast, but also because 
it is enough for me to have shown that the theory 
of evolution still leaves the question oi>en. That 
theory has widened our view of the world and tended 
to unify our view of its history. But it was a mis- 
S7 Outlines of Sociology, p. 168. 



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212 MODERN SOCIOLOGY 

take on Huxley's part to make it claim the throne of 
the world of thought : it is not a philosophy, but a 
scientific generalization which leaves the questions 
of philosophy unanswered. Evolution is not the real 
claimant, but mechanism ; throughout the ages mech- 
anism has been a pretender to the throne, but a flaw 
has always been found in its title. I have argued 
that the flaw remains even after the promulgation 
of the evolution theory; and if authority were wanted 
to back the argument, it might be found in words 
written by Darwin in the last year of his life, ^ If we 
consider the whole universe, the mind refuses to look 
at it as the outcome of chance — that is, without 
design or purpose.* " ^ 

So, then, the mechanical theory of the universe and 
of man has never satisfied the best minds, and it does 
not satisfy them to-day. There is another school of 
social science which traces its descent from Plato and 
Aristotle, whose genius it is too well acquainted with 
to despise. Unfortunately in avoiding one extreme 
it has fallen into the opposite. The mechanical 
theory sees nothing in the universe but matter and 
force, while the theory with which we are now dealing 
sees nothing there but mind. It interprets Plato and 
Aristotle in a pantheistic sense; Christian dualism it 
ignores. It recognizes the beginnings of true social 
theory in the modern world in the writings of Rous- 
seau. From Rousseau it traces the tradition through 
Eant, Fichte, Schelling, and Hegel. Those who owe 

^^The Interpretation of Evolution, a paper read before the 
British Academy, Nov, 24, 19W. 



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MODERN SOCIOLOGY 21Z 

allegiance to Hegel are numerous among the best 
philosophic minds in England, and among sociolo- 
gists or political pliilosophers we may mention such 
names as T. H. Qreen, Bradley, Wallace, and Mr. 
B. Bosanquet. It will not be out of place to trace 
very briefly the connection of ideas in this movement^ 
especially as it is the key to many of the secrets of 
modern thought not only in philosophy, but in litera- 
ture, politics, and religion. Bomanticism in litera- 
ture, liberalism in politics, and the modem idea that 
religion is a sentiment or feeling, may all be traced 
to Bousseau. 

" Man is born free, and everywhere he is in chains," 
is the first sentence of the first chapter in Bousseau's 
Contrat Social, published in 1762. It was the 
trumpet note which gave the signal for the era of 
revolution to begin. Freedom is man's inalienable 
birthright and his distinctive quality. To renounce 
one's freedom is to renounce one's humanity. Not to 
be free is a renunciation of one's rights as a man, and 
even of one's duties, for the slave has neither rights 
nor duties. Man, however, though born free, must 
live in society; in isolation his very freedom is not 
safe. To live in society means to live under govern- 
ment. But government is the restriction of one's 
natural liberty. Hence the fundamental problem in 
politics and in social theory is, in the words of 
Bousseau: "To find a form of association which 
shall defend and protect, with the entire common 
force, the person and the goods of each associate, and 
by which, each, uniting himself to all, may, neverthe- 



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2U MODERN aOOIOLOGY 

less, obey only himself, and remain as free as be- 
fore." » 

This is the famous paradox which Boossean essays 
to solve by his device of the social contract Men 
were to meet together, and by a common act surren- 
der so much of their liberty as waa necessary for the 
purpose of government into the hands of representa- 
tives chosen by themselves, and in obeying their rep- 
resentatives they only obeyed themselves. " The es- 
sence of this social pact/' says Mr. Bosanquet, quot- 
ing Rousseau, ^^ is further reducible to the following 
formula : ^ Each of us puts into the common stock 
his person and his entire powers under the supreme 
direction of the general will ; and we further receive 
each individual as an indivisible member of the whole. 
Instantaneously, in place of the particular person of 
each contracting party, this act of association pro- 
duces a moral and collective body, composed of as 
many members as the assembly has voices, which re- 
ceives from this same act its unity, its common self 
{son moi commun) y its life, and its will. This pub- 
lic person which thus forms itself, by the union of all 
others, used to take the name of cily, and now takes 
that of republic or body politic, which is called by 
its members State when it is passive, Sovereign when 
it is active. Power when comparing it with 
others.' ''«^ 

The theory is neither historical, nor consistent, 
nor practical, as stated by Rousseau, but Mr. 
Bosanquet shows how it may be interpreted in an 

t* B. Boeanquet, The PhUosophiGal Theorp of the State, p. 89. 
so The Philosophical Theory of the Btate^ p. 92. 



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MODBUV 800J0L0G7 216 

idealtetic ^ense in the following manner. ^^ Putting 
aside the defective terminology^ and bearing in mind 
that Sonsseau considers himself to be analyzing the 
essence of that act or character ^ by which a people is 
a people/ we find in this passage very far-?eaching 
ideas. We find that the essence of hnman society 
consists in a common self^ a life and a will^ which 
belong to and are exercised by the society as such^ or 
by the indiyiduals in society as snch; it makes no 
difference which expression we choose. The reality 
of this common self, in the action of the political 
whole, receives the name of the ^ general will/ and 
we sliall examine its nature and attributes in the 
following chapter/^ *^ 

But how is the paradox to be solved? Modem 
states are said to be democratic and self -governed ; 
dees not the idea of self-government involve a con- 
tradiction? As Mr. Bosanquet says: ^^When the 
arbitrary and irrational powers of classes or of in- 
dividuals have been swept awi^, we are left faee to 
face, it would seem, with the coercion of some by 
others as a necessity in the nature of things. And, 
indeed, however perfectly self-government has been 
substituted for despotism, it is flying in the face of 
experience to suggest that the average individual self, 
as he exists in you or me, is ipso facto satisfied, and 
at home, in all the acts of the public power which is 
supposed to represent him. If he were so, the para- 
dox of self-government would be resolved by the an- 
nihilation of one of its factors. The self would re- 
main, but government would be superfluous; or else 



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216 MODERN SOCIOLOGY 

goyemment would be everything, and the self anni- 
hilated."" 

Bentham, J. S. Mill, and the Liberals admitted the 
contradiction and sought a practical solution and 
safeguard for the liberty of the subject by restricting 
the powers of government as far as possible. Ac- 
cording to them it was the province of the govern- 
ment to defend the lives and property of its sub- 
jects and let everything else alone. That theory has 
been found by experience to be unworkable and it is 
now universally discredited. The idealists solve the 
problem by recurring to Hegel's philosophy of iden- 
tity. The subject and the State are one, not 
metaphorically and in interest merely, but in reality. 
According to Hegel, the universal and absolute be- 
ing, which is at the root of all things is Idea. The 
Idea as Mind or Thought develops itself in the man- 
ner of a syllogism in a logical process. Thus abso- 
lute and indeterminate being implies being condi- 
tioned by the limitations of space and time. This is 
nature; the opposite of mind; but nature seeks ever 
to return to its source, and find itself again in the 
unity of the idea from whence it issued. Just as 
science develops and progresses by ever advancing 
through lower to higher generalizations, so the Idea 
is ever striving to express itself more perfectly and 
adequately in new forms. These new forms differ 
from the truths of science in that they are permanent 
facts or aspects of the organized whole. '^ In sci- 
ence," says Mr. Bosanquet, "it may or may not be 



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MODERN SOCIOLOGY 217 

the case that the connection which has led to a 
discovery enters permanently as a discernible fac- 
tor into the structure of knowledge. The re-or- 
ganization of experience may sweep away the steps 
which led to it But in the living fact of society this 
is not so. Its many sides are actual and persist, and 
the emphasis laid from time to time on the principle 
of each — e.g., on positive law, on family ties, on 
economic bonds — merely serves to accent an element 
which has its permanent place in the whole. Thus, 
there must always be family ties and economic 
bonds.^' ^ 

Every development is a distinct logical process as 
thesis, antithesis, and synthesis. The development 
of the modem State, according to the theory of 
Hegel, may be described as follows, keeping close to 
Mr. Bosanquet's text 

The State is the realization of freedom. By free- 
dom, however, Hegel does not understand mere ab- 
sence of constraint, but the capacity for being and 
realizing one's true or higher self. " It is just free- 
dom that is the self of thought; one who repudiates 
thought and talks of freedom knows not what he is 
saying. The oneness of thought with itself is free- 
dom, the free will. Thought, only taken in the form 
of will, is the impulse to break through one's mere 
subjectivity, is relation to definite being, realization 
of one's self, inasmuch as I will to make myself as 
an existent adequate to myself as thinking. The 
will is free only as that which thinks. The prin- 

u The Philosophical Theory of iTie State, p. 257. 



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218 MODERN SOCIOLOQY 

ciple of freedom dawned on the world in Bousseau, 
and gave infinite strength to man, who thus appre- 
hended himself as infinite/' ** 

The story of mind begins long before free mind ap- 
pears on the scene and continues long after. HegePs 
<< mind " is not a separable entity^ and throughout the 
story no such entity has appeared. "The 'free 
mind ' does not explain itself and cannot stand alone. 
Its impulses cannot be ordered, or, in other words, 
its purposes cannot be made determinate, except in 
an actual system of selves. Except by expressing 
itself in relation to an ordered life, which implies 
others, it cannot exist And, therefore, not some- 
thing additional and parallel to it, which might or 
might not exist, but a necessary form of its own ac- 
tion as real and determinate, is the actual fab- 
ric in which it utters itself as Society and the 
State. This is what Hegel treats in the second 
division of the Philosophy of Mind under the name 
of Mind Objective. It is not for him ultimate. A 
particular society stands in time, and is open to 
criticism and to destruction. Beyond it lies the 
reality, continuous with mind as known in the State, 
but eternal as the former is perishable, which as Ab- 
solute Mind is open to human experience in Art, Re- 
ligion, and Philosophy .'' ^^ 

Bight or Law is the actual body of all the condi- 
tions of freedom, it is the realm of realized freedom, 
it is the mind as actualized in Society and the State. 
Law in the directest possible sense is what we call 

»4 The Philoaophical Theory of the State, p. 240. 
•s TJie Philosophical Theory of the State, p. 255. 



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MODERN 80010L0G7 219 

the letter of the law, the bare fact that it is a rule 
of the world we live in. The obseryance of law in 
this sense is l^ality. Against this l^ality rises the 
protest of conscience, especially the Protestant con- 
sci^ice, which refuses to be under the law, and only 
embraces the good because it is good, and because the 
conscience apprehends it as good. From the opposi- 
tion of law and conscience issues the synthesis of the 
Ethical system, and this expresses the truth con- 
tained in the two opposites* The Ethical system or 
Social ethics is the moral life led by a good citizen 
who recognizes the laws, institutions, and customs of 
his country as the expression of his own best self, 
and observes them on that account Hegel ^^intro- 
duces reflective morality or conscientiousness into the 
sphere of Bight, to represent the full nature of mind, 
which is only exhibited in a consciousness which pur- 
sues its aims of its own choice and for their own 
sake. . . . The Ethical system is the idea of freedom 
developed into a present world, and into the nature 
of self -consciousness." ^ 

The Ethical system, the mind and conduct of the 
citizen in Christendom, may be regarded as affirm- 
ing freedom in three principal aspects, necessarily 
connected, and supplementing one another. Out- 
wardly these aspects are different institutions, in* 
wardly they are different moods and dispositions of 
the one and indivisible human mind. These institu? 
tions are the Family, Bourgeois Society, and the 
State in the strict sense. The family is the ethical 
factor which stands nearest to the natural world, 

M The Philosophical Theory of the State, p. 266. 



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220 MODERN SOCIOLOGY 

it first represents the fact of the natural basis of 
social relations, being the embodiment of natural 
feeling in the form of love. The family is a factor in 
the rational whole, the State, and hence its nature 
and sanction are ethical, it rests neither on mere 
feeling nor on mere contract. It has a public side, 
and is an organ of public duties in the bodily and 
spiritual nurture of the children. The monogamous 
family alone can count as a true element of the ethi- 
cal order. The monogamous family is naturally and 
necessarily, to some extent, a unit in respect of prop- 
erty. The mature man or woman on leaving the 
shelter of the family finds himself in a world of con- 
fiicting self interests. He has his living to make, he 
is tied to others only by the system of wants and 
work, and by what is necessary to these, police func- 
tions and the administration of justice. This phase 
of social life, and the temper and disposition which 
it engenders is Hegel's Bourgeois Society. It is the 
opposite extreme of life and mind to that embodied in 
the family. This Bourgeois Society is the aspect of 
the social whole insisted on by the classical political 
economy, society held together by the nexus of cash 
payment We must allow Mr. Bosanquet to de- 
scribe the synthesis of these two opposites in his own 
words : " The State proper, or political constitution, 
presents itself to Hegel as the system in which the 
family and the Bourgeois Society find their comple- 
tion and their security. He was early impressed, as 
we have seen, with the beautiful unity of the ancient 
Greek commonwealths. And the first and last idea 
which governs his representations of the modern 



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MODERN 80CI0L0G7 221 

State is that of the Qreek commonwealth enlarged as 
it was from a sun to a solar system. The family 
feeling and the individual interest are in the modem 
State let go^ accented, intensified to their uttermost 
power; and it is out of and because of this immense 
orbit of its elements that the modem State has its 
^enormous strength and depth.' It is the typical 
mind, the very essence of reason, whose completeness 
is directly as the completeness of each of its terms 
or sides or factors; and secure in the logical confi- 
dence that feeling and self -consciousness, the more 
they attain their fulness, must return the more cer- 
tainly to their place in the reasonable system which 
is their very nature. As ultimate power, the State 
maintains on one side the attitude of an external 
necessity towards the spheres of private life, of the 
family, and of the economic world. It may intervene 
by force to remove hindrances in the path of the com- 
mon good, which accident and immaturity may have 
placed there. But, in its essence, the State is the 
indwelling and explicit end of these modes of living, 
and is strong in its union of the universal purpose 
with the particular interests of mankind. It is, in 
short, the incarnation of the general or Real Will. 
. . . True patriotism is the every-day habit of look- 
ing on the commonwealth as our substantive pur- 
pose and the foundation of our lives.'' ^ 

"The State, as thus conceived," says Mr. Bosan- 
quet in another place, "is not merely the political 
fabric. ... It includes the entire hierarchy of insti- 
tutions by which life is determined, from the family 

«7 The Philosophical Theory of the State, p. 280. 



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222 MODERN SOOIOLOOY 

to the trade, and from the trade to the Church and 
the University. It includes all of them, not as the 
mere collection of the growths of the country, but as 
the structure which gives lite and meaning tO' the 
political whole, while receiving from it mutual- adr 
justment, and therefore expansion and a more liberal 
air. • • • It follows that the State, in this sense, is 
above all things, not a number of persons, but a woi^* 
ing conception of life. It is the conception by the 
guidance of which every living member of the com- 
monwealth is enabled to perform his function, a» 
Plato has taught us/' " 

Or to quote Hegel himself: '^The State is< the 
reality of the ethical idea, the reality of the substan* 
tial Will, the absolute end in itself, in which libwty 
attains its highest Bight, which has supreme domin- 
ion' over its members, whose highest duty it is to be 
members of the State. The State is Mind existing 
in the world and realizing itself in the world as con- 
scious of itself, while in nature it only realizes itself 
as sleeping Mind. The State is the divine Will, as 
present Mind unfolding itself into the real and or- 
ganic form of the world.'' *• 

In other words, the State is the highest expres- 
fidon of the absolute Being, it is Gk>d, become con- 
scious of Himself in it and in man^ And this is what 
Mr. Bosanquet means when he uses such expressions 
as that the philosophical theory of the State puts 
Man in his proper place. It makes him Ood. 

This philosophy is a product of the private study 

«• The PhUosophioal Theory of the State, p. 150. 
•• Qrundlinien der Philo9ophie des Rechta, 9 257 ff. 



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MODBRN 8O0I0L0QY 223 

and not of the market-place. It flatters the pride 
of the* highly cnltiirated professor, who is natorally 
pleased at being told that his thought is evolving 
deity^ and it furnishes very ingenious and far-fetched 
explanations of all things in heaven and on earth, 
but it is too remote from ordinary experi^ice ever to 
become popular or generally acoepted. Common 
sense absolutely refuses to admit tiiat our every 
thought, word^ and deed, are the thought^ word, and 
deed of the all holy Ood; We know too much about 
the jobbery., injustice, violence, and selfish aims of 
StiU;es and politicians, ever to be able to beliieve that 
in the State we have "the very essence of reason," 
theembodim^it of fneedom, and the highest incamar 
tion of infinite Mind: The wonder is that stuff of' 
this sort has exercised; and still does exercise^ so pow- 
^?fuLan influence on minds otherwise acute and well* 
balancedi For that it does so cannot be denied: 
Bq[)ecially is this true of the leaders of what is called 
scientific socialism. A» Mr. Kirkup, in his History 
of 8ooiaii$m^ says : " Marx and Lassalle were botii' 
trained in the school: of H^(el, and naturally applied^ 
to the problems of society the Hegelian theory of de- 
velopment'' ^ In Hegelianism we see the explana- 
tion of Marx's constant and contemptuous allusions 
to the bourgeois political economy, and to bourgeois 
aodely. Mn Belfort Bax, one of the most thorough*- 
going and intelligent of English socialists, draws 
much of his inspiration from the same source. Part 
of Hegel's influence is doubtless due to the fact that 
his doctrine of development fits in with, and serves to 

«o Op. cU., p. 294. 



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224 MODERN 80010L0QY 

complete, the doctrines of evolution. In many re- 
cent writers on sociology, belonging both to the me- 
chanical and to the idealist school, we see a tendency 
to fuse the two philosophies into one in spite of 
their radical opposition to each other. Thus, while 
Mr. Bosanquet thinks it important to observe that 
the mechanical theory of society has not been pro- 
ductive hitherto of much success in the science of 
sociology, yet he praises its effort after harmony 
and precision, while he affirms that the general con- 
ception of a "continuity between human relations 
and the laws of the cosmic order is thoroughly in the 
spirit of Plato and betokens a scientific enthusiasm 
worthy to be the parent of great things*'^ *^ From 
the other side we see in the pages of such writers as 
Mr. Oiddings and Mr. Lester F. Ward a disposition 
to stress the importance of mind in sociological ex- 
planations. In the meanwhile practical socialists 
make use of the doctrines of both schools of so- 
ciology for their own purposes. Sometimes, indeed, 
sociologists make the application desired by social- 
ists themselves. Thus Mr. Lester F. Ward writes 
in his book Applied Sociology: " From this subjec- 
tive side the whole upward movement of society has 
been in the direction of acquiring freedom. If we 
look over the history of this movement, we shall see 
that it exhibits three somewhat distinct stages, which 
may be called in their historical order national free- 
dom, political freedom, and social freedom. The first 
and prime requisite during the early efforts at na- 
tion forming, as set forth in the tenth chapter of 
41 The Philosophical Theory of the State, p. 20. 



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MODERN SOCIOLOGY 225 

Pure Sociology, following upon conquest and snb- 
jugation, was the consolidation of the amalgamating 
group into a national unit capable of withstanding 
the encroachments and attacks of other outside 
groups. . . . The salient features of such an or- 
ganization are extreme inequality, caste, slavery, and 
stern military domination. . . • But individual lib- 
erty is at its minimum. The conquered race, which 
always far outnumbers all the other elements, is 
chiefly in bondage, and the struggle for political free- 
dom begins. Ultimately, as the history of the world 
shows, this is in large measure attained. ... So all- 
important did this issue seem that throughout the 
eighteenth century and down to near our own time 
it was confidently believed that, with the overthrow 
of political oppression and the attainment of political 
freedom, the world would enter upon the great millen- 
nium of universal prosperity, well-being, and happi- 
ness. But this was far from being the case. As 
sages predicted, events have proved that there re- 
mains another step to be taken. Another stage must 
be reached before any considerable degree of the 
hopes that were entertained can be realized. This 
stage is that of social freedom. The world is to-day 
in the throes of this third struggle. Military and 
royal oppression have been overthrown. Slavery, 
serfdom, feudalism, have disappeared. The power 
of the nobility and the priesthood has been broken. 
The civilized world is democratic, no matter by what 
name its governments are called. The people rule 
themselves by their sovereign votes. And yet, never 
in the history of the world was there manifested 



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226 MODBBN BOOIOLOGY 

greater unrest or greater dissatisfaction with the 
state of tilings* National freedom and political 
freedom have been achieved. Social freedom remains 
to be achieved. . . . The forces that prevent social 
freedom are hidden and universally diffused 
through the social fabric. They are largely economic 
forces; they give rise to questions so recondite and 
obscure that the clearest thinkers differ as to their 
solution* • . • The only science that can deal with 
them is sociology. Their study and solution belong 
to applied sociology.^' *^ 

Philosophical doctrines of evolution and develop- 
ment form the ground of the conviction which is fre- 
quently expressed by socialists, with almost religious 
fervor, that the present order of society is bound to 
give place to a higher and better. The following is 
a sober expression of the conviction by Marx: 
^'The working classes know that in order to work 
out their own emancipation — and with it that 
higher form of life which the present form of society 
irresistibly makes for by its own economic develop- 
ment — they, the working classes, have to pass 
through long struggles, a whole series of historical 
processes, by means of which men and circumstances 
will be completely transformed, They have no ideals 
to realize, they have only to set at liberty the elements 
of the new society which have already been developed 
in the womb of the collapsing bourgeois society .'' ^ 
Professor Karl Pearson writes: "Socialism arises 
from the recognition (1) that the sole aim of man- 

4t Applied Sociology, pp. 26-28 (1906). 

4M Quoted in E. Bernstein's Evolutionary SooiaUdm, p. 204. 



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MODERN SOCIOLOGY 2Zl 

kind is happiness in this life^ and (2) that the conrae 
of evolution^ and the struggle of group against group, 
has produced a strong social instinct in mankind, 
so that, directly and indirectly, the pleasure of the 
individual lies in forwarding the prosperity of the 
society of which he is a member. Corporate So- 
ciety — the State, not the personified Humanity of 
Positivism — becomes the center of the Socialist's 
faith. The polity of the Socialist is thus his moral- 
ity, and his reasoned morality may, in the old sense 
of the word, be termed his religion. It is this iden- 
tity which places Socialism on a different footing to 
the other political and social movements of to-day. 
. . . Yes ! sympathy with the Past we must have, but 
war, ceaseless war, with the Past which seeks with its 
idols to crush the growth of the Present! The right 
to re-shape itself is the one birthright of humanity, 
and the * vested interests' of priest or of class, the 
sanctity of tradition and of law, will be of less avail 
in checking human progress than the gossamer in 
the path of the king of the forest" ** 

The doctrines themselves of evolution and develop- 
ment afford no foundation for this simple faith. 
Whatever be the aim of the cosmical process, it is 
admitted that on evolutionist principles we cannot 
flatter ourselves that it is concerned with man's wel- 
fare and happiness. The latest interpreters of the 
process tell us that it apparently makes for greater 
eflftciency, and for the sake of efficiency the welfare 
and happiness of the individual must be sacrificed. 
For Mr. Ramsay Macdonald, the individual citizen is 

*4 Ethic of Freethought, pp. 310-320. 



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228 MODERN SOCIOLOGY 

but "a humble organ in society, seeking peace in 
service and wealth in sharing.'' " In fact," he pro- 
ceeds to say, " disguise it from ourselves as we may, 
in our so-called practical moments, every conception 
of what morality is — except neurotic and erotic 
whims like those of Nietzsche, or antiquated pre- 
scientiflc notions like those of the Charity Organiza- 
tion Society — assumes that the individual is im- 
bedded organically in his social medium, and that, 
therefore, the individual end can be gained only by 
promoting the social end; that the individual is pri- 
marily a cell in the organism of his Society; that he 
is not an absolute being, but one who develops best 
in relation to other beings, and who discovers the true 
meaning of his Ego only when he has discovered the 
oneness of Society." *^ 

All the indications point to the coming slavery. 
The deification of the State by the idealists, the re- 
duction of the individual to the condition of a mere 
cell in the gigantic organism of modern society, show 
us what kind of regime we are to expect if the new 
social order is established. The prophecy with which 
H. Spencer concludes his articles on The Man versus 
The State may prove to be one of the wisest things 
he ever said: "The function of Liberalism in the 
past was that of putting a limit to the powers of 
kings. The function of true Liberalism in the fu- 
ture will be that of putting a limit to the powers of 
Parliaments." 

If Spencer had studied history more closely than 
he did, he would have discovered that socialism and 

4^8ociali8m and Society, p. 28 (1907). 



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MODERN SOCIOLOGY 229 

the coining slavery cu-e but the logical outcome of the 
Liberalism which he professed. The motto of the 
dominant Liberalism of fifty years ago was — Lib- 
erty, Equality, and Fraternity. It was professed 
with the fervor of religious conviction by thousands 
of the most influential politicians and writers of the 
day. One of the first English Liberals who saw 
clearly whither the Liberal doctrines were tending 
was J. Fitzjames Stephen, subsequently made a Judge 
of the High Court. Long meditation, his experience 
as legal member of council in India, and his sound 
common sense enabled him to see the fallacies of the 
Liberalism in which he had been bred. He clearly 
exposed them in his book Liberty, Eqtuility, and 
Fraternity, partly written on his way back to Eng- 
land from India in 1872. The publication of the 
book in the year following was one of the first signs 
that the old Liberalism was dead, and that new ideals 
were coming into view. A passage from that book 
will show clearly the connection between Liberalism 
and Socialism. Sir J. Fitzjames Stephen writes: 
" The only manner in which the famous Republican 
device can be rendered at once fully intelligible and 
quite consistent is by explaining Liberty to mean 
Democracy. The establishment of a Democratic gov- 
ernment which proposes to recognize the universal 
brotherhood of mankind by an equal distribution of 
properly, is as definite a scheme as it is possible to 
imagine, and when the motto is used in real earnest 
and not as a piece of meretricious brag, this is what 
it does mean. When so used the words ^ or death ' 
should be added to the motto to give it perfect corn- 



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280 MODERN socioLoar 

pleteness. Put together and interpreted in the man- 
ner stated, these fiye wwds constitute a complete 
political fifystem, describing with qnite sufficient dis- 
tinctness for all practical purposes the nature of the 
political constitution to be established, the objects 
to which it is to be directed, and the penalty under 
which its commands are to be obeyed. It is a system 
which embodies in its most intense form all the bit- 
terness and resentment which can possibly be sup- 
posed to be stored up in the hearts of the most dis- 
appointed, envious, and ferociously reyengeful mem- 
bers of the human race against those whom they re- 
gard as their oppressors. It is the poor saying to 
the rich, * We are masters now by the establishment 
of liberty, which means democracy, and as all.men are 
brottiers, entitled to share and share alike in the com- 
mon stock, we will make you disgorge or we will pilt 
you to death.' It is needless to say more about this 
doctrine than that those who are attracted by the Re- 
publican motto would do well to ask themselves 
whether they understand by it anything short of 
this; and, if so, where and on what principle they 
draw the line.'' *« 

It required keen insight in a Liberal to see the truth 
so clearly forty years ago; it is so evident now that 
even the blind may see it. 

I have endeavored in these articles to give a fai^- 
ful and objective account of the main systems of so- 
ciology which are now in TOgue. The natural con- 
clusion of the account which I have given is, I think, 
that there must be another system which avoids the 

M Op. oft., p. 196. 



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MODERN 80CIOLOQY 231 

extremes both of mecbanism and of idealism. Man 
is neither a machine, nor is he God, much less an 
evolving god; he is a free creatore of God, composed 
of body and soul ; there is both a spiritual and a ma- 
terial element in his nature. He is a rational being, 
and his chief activities are, or should be, under the 
guidance of reason. Among man's other activities, 
one of the chief is that by which societies or states 
are formed. Such societies are natural as is that 
of the family, but the process by which they are 
formed does not on that account cease to be rational 
and free. There must then be a rational doctrine of 
the constitution of States, just as there is a rational 
doctrine of the conduct of private life. The science 
of sociology is a normative not a physical science. 
It deals not with physical and inexorable laws of brute 
matter, nor with those of evolving deity, but with the 
moral laws of the free human will. This rational 
doctrine of sociology we possess in detail in the num- 
berless treatises of Natural Law, and its broad out- 
lines were traced authoritatively by Leo XIII. in 
his encyclical on the Ch/ristia/n Constitution of States, 
Nov. 1, 1885. It were much to be desired that we 
had in good readable English a text-book of sociology 
on Catholic lines. It would compare most favorably 
with the class of works that we have had under re- 
view. Its sound common sense would recommend it 
to all reasonable men. It would show that the Cath- 
olic Church has no idea and no desire to return to 
the feudalism or to the absolute monarchy of the 
past. We recognize that a new age requires new 
measures, new institutions. As Leo XIII said in 



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232 MODERN SOCIOLOGY 

the encyclical alluded to above : " Our eyes are not 
closed to the spirit of the times. We repudiate not 
the assured and useful improvements of our age, but 
devoutly wish affairs of State to take a safer course 
than they are now taking, and to rest on a more firm 
foundation without injury to the true freedom of the 
people; for the best parent and guardian amongst 
men is truth. The truth ahull make you free. (John 
viii.32)/' 



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XIII 
ENGLISH SOCIALISM AND RELIGION 

Socialism is no longer a merely academic question 
in England; it is already with us, and those who are 
wise in the signs of the times tell us that it has come 
to stay. In accents of triumph op of apprehension, 
according as their sympathies are with it or against 
it, they assure us that in the near future Socialism 
will exert a powerful, if not a dominant, influence 
on the government of England. Under these circum- 
stances it behoves us all to study this new factor in 
English life, and to settle what our own relation to 
it should be. It is being discussed, defended, and 
criticized in a thousand halls and on a thousand plat- 
forms. Its economic and political bearings are being 
made clear. But it has an ethical and religious side 
as well, and especially from this point of view it 
merits the careful attention of Catholics. We dif- 
fer without prejudice to our faith on political and 
economic questions, but we wish to be at one on 
matters touching Catholic faith and practice. 

Nor can the question of English Socialism be set- 
tled summarily and offhand. No one who knows 
anything of the condition of the poor in our large 
cities can refrain from sympathizing with the noble 
object of raising the condition of the poor which 

233 



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234 ENGLISH SOCIALISM AND RELIGION 

English Socialists profess. Some of the means which 
they propose for this object are above reproach. 
Some of their accredited writers speak with apprecia- 
tion and gratitude of what the Catholic Church has 
done for the poor in the past They fully acknowl- 
edge the noble part she played in the abolition of 
slavery, in preaching the essential equality and broth- 
erhood of all men, and in gradually raising the condi- 
tion of the serf. They confess that history shows 
that the Middle Ages, when the Church was all-pow- 
erful, were the golden era of the workingman; and 
that individualism and capitalistic exploitation of 
the poor came in with the Protestant reformation. 
English Socialists for the most part seem anxious to 
dissociate themselves from their forerunners. They 
have no sympathy with the Communistic Utopias of 
the early Socialists, nor with the violent remedies 
of those who lived a generation ago. Not without 
reason was Socialism in the past largely identified in 
men's minds with anarchism and atheism, but mod- 
em English Socialists seem generally anxious to per- 
suade the public that their system is something quite 
different Thus Mr. Blatchford says: "Another 
charge against Socialists is that they are Atheists, 
whose aim is to destroy all religion and all morality. 
This is not true. It is true that some Socialists are 
Agnostics and some are Atheists. But Atheism is no 
more a part of Socialism than it is a part of Tory- 
ism, or of Radicalism, or of Liberalism. Many prom- 
inent Socialists are Christians, not a few are clergy- 
men. . • . Socialism does not touch religion at any 
point It deals with laws, and with industrial and 



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ENGLISH SOCIALISM AND RELIGION 235 

political government/' ^ Another Socialist writer 
says: "The grossest misconceptions of Socialism 
amongst lai^ masses of the people still prevail. To 
the minds of many, even in these supposed enlight- 
ened days, the Socialist is a robber, an idle vagabond, 
who is seeking to steal from the thrifty their hard- 
earned store, or to take from the rich their rightly 
inherited wealth. To some others Socialism is the 
negation of God and of religion. It would destroy 
the sacred ties of marriage, institute free love, give 
license to immorality, pillage the churches, and put 
to flight the anointed servants of the Most High. 
Another misconception of Socialism is that which 
associates it with anarchy. Use the word Socialism 
in the hearing of these people and visions of bombs 
and dynamite, cruel assassinations and horrid ex- 
plosions, maimed and mangled limbs and tortured 
bodies appear before their terrified eyes. Equally 
uninformed are those individuals who think that So- 
cialism means an equal division amongst its inhabi- 
tants of the world's wealth; or that it involves the 
destruction of private property. Socialism means 
none of these things. Not one of these is a part of 
the Socialist program.'' ^ 

Individual Socialists may, indeed, have fads of 
their own, but the root principle of Socialism in 
which they all agree is, says Mr. Blatchford, this: 
" That the country, and all the machinery of produc- 
tion in the country, shall belong to the whole people 
(the nation), and shall be used by the people>^and for 

1 Britain for the British, p. 77 (1902). 

*The Woman Socialist, by B. Snowden, p. 2 (1907). 



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236 ENGLISH SOCIALISM AND RELIGION 

the people/' ' The reign of Collectivism, then, to be 
brought about gradually, without violence, and with- 
out injustice, is the aim of English Socialism. Mr. 
Belfort Bax, however, admits that "the attempt to 
limit the term Socialism within the four walls of an 
economic definition is, in the long run, futile," al- 
though he maintains that the formula of Collectivism 
contains all that is " of faith " in Socialism. It is 
notorious that Mr. Blatchford, who was quoted above 
as saying that Socialism does not touch religion at 
any point, nevertheless found that Christianity stood 
in his way, and so he attacked Christianity. Other 
Socialists, too, generally find themselves compelled 
to consider the relation of Socialism to Christianity. 
They are aware that the official attitude of the chief 
Christian bodies is against them, but they stoutly 
maintain that the doctrine of Christ Himself and of 
the Primitive Church was not only not antagonistic, 
but was positively favorable, to Socialism. 

For example, Mr. Blatchford says: "Christ's 
teaching is often said to be Socialistic. It is not 
Socialistic but it is Communistic, and Communism 
is the most advanced form of the policy generally 
known as Socialism.''* Mr. H. G. Wells says: 
" There is first the assertion, which effectually bars 
a great number of people from further inquiry into 
Socialist teaching, that Socialism is contrary to Chris- 
tianity. I would urge that this is the absolute inver- 
sion of the truth. Christianity involves, I am con- 
vinced, a practical Socialism if it is honestly carried 

t Britain for the British, p. 84. 
* Britain for the British, p. 7a 



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ENGLISH SOCIALISM AND RELIGION 237 

out. This is not only my conviction^ but the reader, 
if he is a Nonconformist, can find it set out at length 
by Dr. Clifford in a Fabian tract, ^ Socialism and the 
Teaching of Christy* and, if a Churchman, by the 
Bey. Stewart D. Headlam in another, ^ Christian So- 
cialism.' It is said that a good Catholic of the Bo- 
man communion cannot also be a Socialist. Even 
this very general opinion may not be correct. I be- 
lieve the papal prohibition was aimed entirely at a 
specific form of Socialism, the Socialism of Marx, 
Engels, and Bebel, which is, I must admit, unfor- 
tunately strongly anti-Christian in tone, as is the 
Socialism of the British Social Democratic Federa- 
tion to this day." ^ 

The Bev. S. D. Headlam writes : " There is no ex- 
cuse for the Socialists and Social Beformers if, on 
account of the iniquities of the bishops and the fol- 
lies of the patron-appointed clergy, they refuse to 
capture the Church, whose principles are all for So- 
cialism; there is no excuse on the other hand, for 
the bishops and clergy if they allow the patrons and 
the plutocrats to make them false to the ideals which 
they were ordained and consecrated to maintain; 
above all, there is no excuse for Churchmen and So- 
cialists if they refuse to co-operate with all men of 
good will, whether they call themselves Churchmen 
or Socialists, or whether they are merely members 
of the great Common People, in bringing about such 
Socialist legislation as is possible during the next 
seven years. The message of the Church to all these 
is : * Sirs, ye are brethren ; why do ye wrong one to 

s The Grand Magazine, December, 1907, p. 701. 



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238 BNGLI8H SOCIALISM AND RBLIQION 

another? ' " • Mr. Keir Hardie asserts : " It would 
be an easy task to show that Ck)mmanism^ the final 
goal of Socialism, is a form of social economy very 
closely aJdn to the principles set forth in the Sermon 
on the Mount . . . For seven hundred years, says 
one authority, almost all the Fathers of the Church 
considered Communism the most perfect and most 
Christian form of social organization, and it was only 
after Christianity, from being the despised and perse- 
cuted creed of the poor, had become the official re- 
ligion of the State, that opinion on this point b^an 
to undergo a change. Even then it was not until 
the thirteenth century that the Church came out into 
the open as a defender of property. . • . When the 
old civilizations were putrefying, the still small voice 
of Jesus the Communist stole over the earth like a 
soft refreshing breeze carrying healing wherever it 
went.^' ' 

Obviously there is a question here which needs an 
answer, an obscurity which needs clearing up. May 
a Christian and a Catholic, who values his religion 
and wishes to preserve it, be also a Socialist? And 
what attitude should he adopt towards this new form 
of Socialism which is predominant in England and 
which has strongly influenced the Socialist movement 
throughout the world? 

Most English Socialists seem anxious to persuade 
us that their system is not anti-religious. Before 
studying what Catholic doctrine or the teaching of 
the Catholic Church may have to say on this point, 

• The SocialiaVs Church, p. 84 (1907). 
TFrom Serfdom to Socialism (1907). 



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BNGLI8H SOCIALISM A2fD RBUOION 239 

it will be of advantage to know on what grounds it 
is maintained that this form of Socialism is not hos- 
tile to religion or Christianity.' On the motion of 
Mr. J. E. MacDonald, M.P., the Hull Conference, 
1908, declared: '^That the attempt that has been 
made to make the labor movement appear to be an- 
tagonistic to religion is a deliberate perversion of the 
truth, and made for mean partizan purposes. It wel- 
comes men and women of all religious beliefs, as it is 
a political movement dealing with state affairs, not 
religious beliefs.'' This sounds very reassuring, but 
before concluding from such a declaration that we 
may remain loyal Catholics and yet give our support 
to the English Labor Party, which on the same occa- 
sion declared in favor of Socialism, we should do 
well to inquire what Mr. Macdonald understands by 
religion. When explaining his motion to the Confer- 
ence he said that ^^ religion was the conscious rela- 
tionship between the finite and the infinite," and of 
this Socialism took no cognizance whatever. To the 
Catholic, however, religion means much more than 
the conscious relationship between the finite and the 
infinite. The Catholic religion has much to say about 
our duties to Ood, but it also teaches that we have 
duties towards our neighbor as well, duties of justice, 
charily, and many other virtues. It has much to tell 
us about the rights and obligations of property, and, 
because it is deeply interested in the religious educa- 
tion of the people, it takes up a determined attitude 
on the question of the secularization of the schools. 
With his restricted view as to what religion implies, 
Mr. Macdonald could boldly propose his motion, but 



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240 ENGLISH SOCIALISM AND RELIGION 

a sincere Catholic, who knows what Catholicism is, 
would hardly be convinced by Mr. Macdonald's argu- 
ment 

A declaration signed by a hundred ministers of 
various religious denominations was published in the 
papers at the beginning of 1908. These Christian 
ministers went further than Mr. Macdonald. They 
asserted that ^^ the central teaching of Socialism is 
a matter of economics, and may therefore be advo- 
cated by all men, whether they be Christians or un- 
believers; yet (they said) we feel as ministers of the 
Christian faith that this economic doctrine is in per- 
fect harmony with our faith, and we believe that its 
advocacy is sanctioned and indeed required of us by 
the implications of our religion." Before we allow 
this solemn declaration to have much weight with 
us, it will be well to consider the views of the sig- 
natories as to what Christianity is. One of them, Mr. 
Campbell, of the City Temple, and a prominent ad- 
vocate of the New Theology, says in a recent publi- 
cation of his : " We cannot too strongly insist that 
the work of Christianity is to realize the kingdom 
of Ood on earth and nothing else. Christianity has 
not, and never has had, any other divine commis- 
sion." 

The Catholic holds on the contrary that the king- 
dom of Ood can never be realized in earth, and that 
the Christian Church received the divine commission 
to prepare her children for the life to come in heaven. 
A Catholic, therefore, will not be greatly influenced 
by Mr. CampbelPs opinion that Christianity is com- 
patible with Socialism. Their views as to what 



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ENOLISH SOCIALISM AND RELIGION 241 

Christianity is and what is its mission in the world 
are too divergent. 

Nor is the instructed Catholic likely to be much 
influenced by the Eev. Dr. J. Clifford, who has writ- 
ten a very unconvincing tract for the Fabian Society 
on " Socialism and the Teaching of Christ.^' 

Another signatory, the Rev. S. D. Headlam, is an 
Anglican clergyman who succeeds in combining So- 
cialism with Christianity, but only at the exi)ense of 
much that has hitherto been deemed essential to it 
by both Anglicans and Catholics. As a specimen of 
what Mr. Headlam has thrown overboard we will 
quote what he says about the Bible. He writes: 
" If the return to religion is to mean a great return 
to the Church, then the common people must be ' 
plainly and frankly told that the Bible is not the in- 
fallible Word of God ; that the religion and morality 
which that interesting literature records were tenta- 
tive and relative; that many horrible and foolish 
things are recorded in it with approval which it would 
be un-Christian for us to approve," ® 

Plainly the Catholic's idea of what is Christian 
and what un-Christian will differ much from Mr. 
Headlam's. 

Mr. Keir Hardie has written a chapter on Social- 
ism and Christianity in his recent book "entitled 
From Serfdom to Socialism. The late chairman 
of the Independent Labor Party is not indeed a theo- 
logian, but as he merely professes to use what he has 
found in Socialist authorities on the subject, it will 
be worth while to quote what he says. " Christ's de- 

• The 8ociaU8t*8 Cliurch, p. 81. 



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242 BNGLI8S SOCIALISM AND RELIGION 

nunciations of wealth/' he writes, " are only equaled 
by the fierceness of the diatribes which he leveled 
against the Pharisees. . . • Almost without exception 
the early Christian Fathers proclaimed that inas- 
much as nature had provided all things in common, 
it was sinful robbery for one man to own more than 
another, especially if that other was in want The 
man who gathered much whilst others had not enough, 
was a murderer. The poor had a right to their share 
of everything there was, which is different from the 
charity so common nowadays. If a man inherited 
wealth he was, if not a robber himself, but the re- 
cipient of stolen goods, since no accumulation of 
wealth could be come by honestly. To those who 
said that the idleness of the poor was the cause of 
their poverty, St. Chrysostom replied that the rich 
too were idlers living on their plunder. . . . My pur- 
pose in writing this chapter will have been served 
if I have succeeded in showing that the Socialist who 
denounces rent and interest as robbery, and who 
seeks the abolition of the system which legalizes 
such, is in the true line of apostolic succession with 
the pre-Christian era prophets, with the divine Foun- 
der of Christianity, and with those who for the first 
seven hundred years of the Christian faith main- 
tained even to the death the unsullied right of their 
religious faith to be regarded as the Gospel of the 
poor." It is unutterably sad to think of the bad pas- 
sions and hatred of the Church which writing of this 
sort is likely to kindle among the poor and ignorant. 
There is an element of truth in it, but it is mixed 
with an intolerable amount of misrepresentation. 



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ENGLISH SOCIALISM AND RELIGION 243 

Unfortunately such writing is becoming very com- 
mon. Christ, of course, never condemned riches or 
rich men as such, though he did teach that it is diflft- 
cult but not impossible for a rich man to enter the 
Kingdom of Heaven. St John Chrysostom and some 
other Fathers of the fourth century said some strong 
things in their sermons about the rich of their day, 
but they did not deny the right of private property 
nor does their teaching countenance Socialism. Mr. 
Keir Hardie's claim to be in the apostolic succession 
on account of his doctrine would have earned him a 
place among the heretics about whom the early 
Fathers write. St. Augustine, the greatest of all the 
Latin Fathers, in his work On Heresies mentions 
among others the " Apostolici '* who, he says, " most 
arrogantly call themselves by this name because they 
do not receive into their communion those who live in 
marriage and possess property. But," adds the holy 
Doctor, not without a touch of humor, " these people 
are heretics because they separate themselves from 
the Church and assert that there is no hope of salva- 
tion for such as have what they themselves have 
not.'' 

We have seen that Socialists quite commonly as- 
sert that Our Lord was a Communist if He was not 
a Socialist of the English type, and that the Fathers 
of the Christian Church preached Socialism. Mr. 
Keir Hardie quotes authority for saying that all the 
Fathers of the Church considered Communism the 
most perfect form of social organization, and that it 
was only when Christianity ceased to be the despised 
religion of the poor and the persecuted in order to 



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244 ENGLISH SOCIALISM AND RELIGION 

become the ofScial religion of the State that opinion 
on this point began to undergo a change. He asserts, 
indeed, that the Church did not become the avowed 
defender of property before the thirteenth century. 
And all this, he says, " incidentally shows how little 
modem churchgoers know of the history of their own 
religion when they charge Socialism with being anti- 
Christian."^ Is this a true account of the matter 
or is it a mere travesty of historical fact? It is, of 
course, obvious to any one who reads the Gospels that 
the sympathies of Our Lord were with the poor. He 
chose for Himself a life of poverty. He sought His 
apostles and disciples among the poor, He indicated 
the fact that the Gospel was being preached to the 
poor as a sign of His Messiasship, He taught that it 
was very difficult for the rich to enter the Kingdom 
of God, He invited chosen souls to embrace poverty 
voluntarily as a counsel of perfection, but He did not 
condemn riches in themselves as the Socialists assert 
that He did. 

The most cursory reading of the context of those 
passages in the Gospels which are quoted to prove 
that Jesus Christ condemned riches, shows that he 
did nothing of the kind. He said indeed : ^^ Woe to 
you that are rich: for you have your consolation. 
Woe to you that are filled: for you shall hunger. 
Woe to you that now laugh : for you shall mourn and 
weep. Woe to you when men shall bless you: for 
according to these things did their fathers to the false 
prophets." But if Our Lord condemned riches in 
this passage, he equally condemned the taking of a 

» From Serfdom to Socialism, p. 42. 



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ENGLISH SOCIALISM AND RELIGION 245 

good meal and laughter. It is obvious that not riches 
in themselves are here condemned, but those rich peo- 
ple who put their trust, happiness, and consolation in 
their wealth, and neglect the Kingdom of Qod. Still 
less does the story of the rich young man favor So- 
cialism. " What good shall I do,'' he asked, " that I 
may have life everlasting? '' " If thou wilt enter into 
life, keep the commandments," answered Jesus. " All 
these I have kept from my youth, what is yet want- 
ing to me?" again asked the other. Then Jesus 
looked upon him, and loved him and said : ^^ If thou 
wilt be perfect, go sell what thou hast and give to the 
poor, and thou shalt have treasure in heaven: and 
come follow Me." It is obvious from this that the 
actual renouncing of wealth was not considered by 
Our Lord as one of the commandments the keeping of 
which is necessary for eternal life. He invited a 
chosen soul to leave his wealth and follow Him more 
closely with a view to obtaining the perfection of 
charily. In other words, as the Church has always 
taught, the voluntary renunciation of wealth in order 
to imitate Jesus Christ more closely, is one of the 
counsels of perfection to which those who are called 
may aspire, but it is not necessary for salvation. 
The Communism, which for a short time was prac- 
tised in the early Church, was voluntary, as is clear 
from St. Peter's words to Ananias. In all ages there 
have always been, as there are to-day, many thou- 
sands of men and women who follow the counsel of 
Our Lord and practise voluntary poverty in the Cath- 
olic Church. 
Nor did the Fathers of the Church to whom Mr. 



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246 BNGLI8H SOCIALISM AND BBLIGION 

Keir Hardie alludes teach anything different from 
this. They laid great stress indeed on the duty of 
almsgiving, they declared that the poor had a right 
to alms, but by this they meant a right arising from 
the title of charity. They sometimes accused the 
rich of defrauding the poor, and of injustice; sins that 
many rich men in all ages and countries have been 
guilty of, but not necessarily infecting riches as such. 
It is possible to get rich without committing injustice, 
though it be true that injustice is the cause of many 
men being rich. St John Chrysostom and those 
half-dozen Fathers of the fourth century whose strong 
language is quoted by Socialists in this connection 
did not condemn riches in themselves or deny the 
right of private property. This is clear from what 
St. John Chrysostom says, for example, in his second 
Homily to the people of Antioch. We there read: 
" It is worth while to inquire why the Apostle writ- 
ing to Timothy did not say : Charge the rich of this 
world not to be rich, charge them to become poor, 
charge them to give up their possessions; but he said 
to them: Charge the rich of this world not to be 
high-minded. He knew that pride is the root and 
prop of riches : and if a man know how to live with 
moderation such a one has no great affection for them. 
. . . Besides he knew that riches are not forbidden 
if their owner uses them for his necessities. For, as 
I said, wine is not an evil thing but drunkenness is; 
so wealth is not a bad thing but avarice is. A miser 
is one thing, a wealthy man another. . . . Besides, 
Paul was not accustomed to command all things to 
all men, but he accommodated himself to the weak- 



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ENGLISH SOCIALISM AND RELIGION 247 

ness of his hearers as did Christ Himself. For to 
the rich man who came up to Him and asked about 
life eternal Christ did not say at once : Go, sell all 
that thou hast; but omitting this, He instructed him 
concerning the other commandments. Then after the 
rich man had given Him an opening by saying: 
" What is yet wanting to me? not even then did He 
simply tell him to sell all that he had, but He said : 
If thou wilt be perfect sell what thou hast: I leave 
this to your free will, you may choose it or not, I im- 
pose on you no strict obligation.'* *^ 

Similar passages could be quoted from St. Basil, 
St Ambrose, and from the other Fathers of the early 
Church whose isolated oratorical utterances the So- 
cialists so grossly misrepresent. The constant teach- 
ing of the Catholic Church with regard to wealth is 
explained at length by Clement of Alexandria, one of 
the most learned of the Fathers who lived at the end 
of the second century. He wrote a treatise on the 
question Who that is rich may he saved. With a 
view to explaining the Christian doctrine about 
riches, he quotes and annotates at length the Qospel 
story about the rich young man. He gives the pas- 
sage from the €k>spels in full, and then among other 
comments has the following: *^ Jesus does not blame 
him for not fulfilling all the commandments of the 
law, nay, rather, He loves and cherishes him in that 
he had strenuously put in practice what he had been 
taught; but for all that He declares him imperfect 
with reference to life eternal, in that he had not done 
what belongs to perfection ... * sell what thou hast' 

10 Migne 49, ooL 89, n. 5. 



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248 SyGLISH SOCIALISM AND BBLIGION 

What does this mean? He certainly does not bid him 
throw away his wealth and give up his money as some 
understand it in the obvions sense; but He bids him 
remove from his heart the yain esteem for wealth, 
the unbridled lust and greed of it, the anxious cares 
and tribulations of the world, which choke the seed 
of life. • . . For it is a necessary consequence that 
he who is in want of the necessaries of life is broken 
in spirit and distracted with anxiety while he strives 
to procure a livelihood anyhow and anywhere. How 
much better is it that he should possess moderate 
wealth so as not to be in want himself and so as to 
be able to help others in necessity. For if nobody 
has anything what mutual help can there be among 
men? Would not that be in open contradiction with 
many beautiful points of Our Lord's teaching? 
Make friends of the mammon of iniquity, etc. . . « 
Lay up treasure in heaven. . . . How could one feed 
the hungry, give drink to the thirsty, clothe the naked, 
take the stranger in (which he must do to avoid hell 
Are, and the exterior darkness), if he is himself with- 
out means. Christ Himself was hospitably received 
by Zacchaeus and by Matthew, who were rich pub-, 
licans. And He does not bid them give up their 
wealth, but says : ^ This day is salvation come to this 
house in that he, too, is a son of Abraham.' He so 
praises the use of money that He commands alms- 
deeds, the giving of drink to the thirsty, food to the 
hungry, the clothing of the naked, and hospitality to 
the stranger. But then since these duties cannot be 
fulfilled without money, if He bade us renounce it. 
Our Lord would command us at the same time to 



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ENGLISH SOCIALISM AND RELIGION 249 

giye and not to give, than which nothing can be more 
foolish. So that wealth which contributes to our 
neighbor's assistance is not to be given np. . . . 
Wealth is a means; if you use it rightly it is 
an aid to virtue; if you use it wrongly it is an 
occasion of sin. Since, then, wealth is neither good 
nor bad in itself, and may be possessed without fault, 
it must not be condemned. . . . Let no one then de- 
stroy riches and wealth, but rather let him root out 
the affections and cares which prevent them being 
used virtuously; so that becoming good and hpnest 
he may also use wealth honestly and well. When, 
therefore, we are bidden to renounce wealth and to 
sell what we possess, this is to be understood of re- 
nouncing the inordinate affections and cares con- 
cerning earthly possessions. ... So that we must 
not understand what is said about the rich entering 
with difficulty the kingdom of heaven in a wrong, 
bald, and carnal sense; but more spiritually. For 
though what be said, still salvation does not consist 
in externals, whether they be abundant or not, great 
or little, of high repute or obscure, esteemed or oth- 
erwise; but salvation consists in the virtues of the 
soul, in faith, hope, charity, brotherly love, wisdom, 
meekness, modesty, truth; of these virtues salvation 
is the reward." ** 

We must then conclude that the doctrine of Christ 
and of the Christian Church lends no support to So- 
cialism even of the mild English type, and that 
Catholicism and Socialism are incompatible with one 
another. The more keen-sighted of the Socialists see 

11 Quia dives aalvetur, cc 0-18. 



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250 ENGLISH SOCIALISM AND RELIGION 

this quite plainly, and while some of them ignore the 
fact or strive to conceal it for strategical reasons, 
others are quite plain-spoken on the point. Among 
the latter is Mr. Belfort Bax, who writes thus : " In 
face of the active campaign of the Boman Catholic 
Church among peasants and workmen in many parts 
of the Continent of Europe, as well as in some of the 
States of North America, the notion of maintaining 
that religion is a purely private matter, and that So- 
cialism has no concern with it, if it be a pretense, is 
a dishonest farce, and if it be no pretense, must mean 
treachery to the parly. It were surely a much bet- 
ter policy, while always insisting on the avoidance 
of barren, theological controversies or the unnecessary 
irritation of smoldering religious sentiment, to can- 
didly admit that Socialism, like every other system 
of society, has its own Weltcmschautmg, or concep- 
tion of the universe, and that, rash as it would un- 
doubtedly be at present to attempt to confine it within 
the four comers of any formula or set of f ormute — 
it is, nevertheless, if nothing else, incompatible with 
the supematuralism and with much of the ethics of 
the old religious systems. It is, of course, perfectly 
true that a man may favor any particular * plank * 
of the immediate party program and vote for them 
while remaining a strict Catholic or Calvinist or Jew 
or Moslem ; and the present writer would be the last 
in the world to choke oflF such extraneous aid — aid 
which is not merely desirable or advantageous, but, 
in the present position of affairs at least, is in most 
countries absolutely essential to the formation of a 
Parliamentary Socialist parly. All that is sought 



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ENGLISH SOCIALISM AND RELIGION 251 

to be urged here merely points to a distinction be- 
tween such * proselytes of the gate' and those who 
are definitely recognized as members of the Socialist 
party. The profession of dogmatic theological be- 
liefs by the latter can but mean one of two things — 
either deliberate deception, or such a hopeless nebu- 
losity of mind as to suggest that the persons in ques- 
tion are extremely undesirable members of an or- 
ganization where sincerity, outspokenness of convic- 
tion, and clearness of intention, are of the first im- 
portance.*' " 

May we hope that all Catholics will bear in mind 
the verse in the Book of Proverbs : 

** A net is spread in vain before the eyes of them that 
have wings.** 

ti Essays in SooiaUsm, p. 99 (1907). 



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XIV 
EUGENICS AND MORAL THEOLOGY 

Eugenics, the science of good breeding, is the 
youngest of all the sciences, but she already displays 
considerable vigor and she has a very high estimate 
of her own importance for the welfare of mankind* 
The late Sir Francis Galton put Eugenics on a scien- 
tific basis and gave it its name. In 1904 he founded 
the Francis Galton Laboratory in the University of 
London for the study of agencies under social control 
that may improve or impair the racial qualities of 
future generations either physically or mentally. By 
his will he left a considerable portion of his wealth 
to this institution. The Eugenics Education Society 
was founded in London in the yekr 1908 with the 
object of rousing public opinion to a sense of the im- 
portance of the subject, and spreading knowledge, 
and providing teaching on it among the people. This 
Society publishes a quarterly Review. 

Eugenics builds on the facts of heredity. Together 
with a tendency to slight variation, offspring in gen- 
eral display the qualities of their parents. This fact 
has, of course, been known for ages, and breeders of 
animals and growers of plants have taken advantage 
of it to improve their stock. Man is subject to the 
phenomena of heredity as well as animals and plants, 
and eugenists propose to make use of the old and new 

252 



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BVGBKI08 AND MORAL THEOLOGY 253 

knowledge which modem science has gained and will 
continue to gain on the facts of heredity in order to 
improve the breed of men. The conviction which has 
been gaining ground for some years past that at pres* 
ent in England the worse stocks are increasing faster 
than the better stocks of the population gives actu- 
ality and urgency to the proposal. It is pointed out 
that in former times pestilence, famine, war, and gen* 
erally harder conditions of life eliminated the weaker 
and the unfit. Nowadays medical science and the 
amenities of modem civilization preserve many who 
would not have survived in ruder circumstances. 
Weaklings in body and mind not only survive in 
greater numbers under modem conditions, but they 
multiply more rapidly than the sounder stocks. The 
number of the insane, neurotic, feeble-minded, sickly, 
unhealthy, d^enerates, and undesirables is steadily 
increasing, and threatens to poison the life of the 
nation. Many causes seem to be working in the same 
direction. The higher and better classes marry later, 
as a rule have fewer children, and many of the more 
enterprising emigrate to other lands, where there is 
a better opening for their energy and ability. The 
poor are more improvident They marry earlitf, 
have larger families, the mother often works in the 
factory and cannot suckle her babies or look after 
her children ; even when they are healthy themselves 
they frequently intermarry with vitiated stocks. The 
strain of modem competition and the unhealthy en* 
vironment furnished by our large centers of industry 
tell with deadly effect on our laboring population^ 
the great bulk of the nation. The daily constant 



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254 BUGENIOS AND MORAL THBOLOQY 

grind wears down the Ertrongest constitationsy and 
destroys their physique and nerve power. Probably 
more disastrous than all other causes is the general 
absence of religion with its controlling, soothing, and 
vivifying influence. After all, the worst enemies of 
bodily, mental, and spiritual health are neither in- 
herited defect, nor insanitary environment, nor the 
grinding wear and tear of competitive industry; but 
drink, gluttony, lust, pride, avarice, and the other 
unbridled passions of poor human nature. At any 
rate the Christian religion exercises a very powerful 
controlling influence over these passions, and helps 
a man to keep them in subjection to reason. Re- 
ligion, too, soothes and recreates as nothing else can 
do; it calms the mind, and tends to prevent useless 
fretting and discontent. The general decay of re- 
ligion robs men of all these salutary influences, and 
nothing can be found to take its place. The effect 
of these and other causes on the physical and mental 
health of the nation is nothing less than appalling. 
For confirmation of this we need not go to alarmists. 
It will be sufScient to quote the sober and deliberate 
judgments of one or two scientists of standing on the 
crisis which has arisen in the national life. Profes- 
sor J. A. Thomson writes : " We have to face a more 
difficult problem when we consider the multiplica- 
tion of the relatively unfit. It is, we suppose, true 
that these have now a better chance to survive and 
multiply than at any other epoch in the history of our 
race. Especially perhaps in Britain do the weeds 
tend to increase more rapidly than the fiowers. It 
is impossible to ignore the seriousness of the outlook. 



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BUGBNIOS AND MORAL THBOLOGY 256 

If y as Professor E^arl Pearson points out^ 25 per cent, 
of the married couples in Britain produce 50 per 
cent of the next generation^ how much depends on 
the character of that 25 per cent From the most 
diverse regions we have reports of the alarming in- 
crease of what not even the most optimistic can re- 
gard as other than undesirables. In a fine climate 
and in a period of cheap food and high wages, the 
ratio of defectives — including deaf and dumb, luna- 
tics, epileptics, paralytics, crippled and deformed, 
debilitated and infirm — is said to have increased 
from 5.4 per 1,000 above 15 years in 1874 to 11.6 
in 1896. Particular statistics, such as these, may be 
open to criticisms, but there are scores of similar 
statistics from almost every civilized country and 
there is no escape from the general result As Em- 
erson said, we are breeding men with too much guano 
in their composition."* 

In his lecture on The scope and importa/nce to the 
State of the Science of National Eugenics [1909], 
Professor K. Pearson says : " A clean body, a sound 
if slow mind, a vigorous and healthy stock, a numer- 
ous progeny, these factors were largely representative 
of the typical Englishman of the past; and we see 
to-day that one and all these characteristics can be 
defended on scientific grounds; they are the essentials 
of an imperial race. . . . We reach the state of af- 
fairs which Mr. Sydney Webb tells us is demonstra- 
ble in another intellectual circle in this country, an 
almost childless population with no inheritance of its 
ability. And against this we have to set the maxi- 

1 Heredity, p. 52a 



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256 BVGBNI08 AND MORAL THEOLOGY 

mum fertility which, is reached by the d^enerate 
stocks! . . . The progress of the race inevitably de- 
mands a dominant fertility in the fitter stocks. If 
that principle be not recognized as axiomatic by the 
mentally and bodily fit themselves, if the statesman 
does not accept it as a goide in social legislation, then 
the race will degenerate, until, sinking into barbar- 
ism, it may rise again through the toilsome stages 
of purification by crude natural selection. I am not 
pessimistic in this attitude. I know that the Eng- 
lish people has been aroused to self-consciousness 
more than once in its history, and I believe that now 
it can be brought to realize that safety lies in a con- 
scious race-culture. ... On the one hand I do not 
raise an alarmist picture of our coming decadence, 
nor on the other hand would I leave you without in- 
sisting that there is grave occasion for earnest 
thought.'* 2 

It is obvious that Eugenics is a subject of interest 
to Moral Theology, and that the two sciences touch 
at several points. We shall not then be justly ac- 
cused of meddling in what does not concern us, if we 
inquire into the attitude which theology should adopt 
towards the newcomer. We have no wish to provoke 
another confiict between science and religion, but, as 
the eugenists allow, this is a matter which specially 
concerns the moralist and the theologian. Indeed if 
any conflict takes place, it will not be the theologian 
who has provoked it The theologian has reason to 
complain that some eugenists have gone out of their 
way to deliver a gratuitous assault on what is dear 

t Op. cit, pp. 41-45. 



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SVGEmOS AND MORAL THEOLOGY 257 

to theology. Thus, Professor W. Bateson, in his in- 
augural lecture on The Methods and Scope of Genet- 
ics, 23rd October, 1908, said: " The blundering cru- 
elty we call criminal justice will stand forth divested 
of natural sanction, a relic of the ferocious inventions 
of the savage. Well may such justice be portrayed 
as blind. Who shall say whether it is crime or pun- 
ishment which has wrought the greater suffering in 
the world? We may live to know that to the keen 
satirical vision of Sam Butler on the pleasant moun- 
tains of Erewhon there was revealed a dispensation, 
not kinder only, but wiser than the terrific code which 
Moses delivered from the flames of Sinai.''* The 
Eugenics Review, November, 1910, p. 169, had the 
following: "A considerable proportion of criminals 
are known to be feeble-minded, and a considerably 
larger proportion of criminals are driven into crime 
by hereditary tendencies; possibly the rest are made 
by a defective education. Individual responsibility 
is thus in great part mythical ; the self -protective in- 
terest of society would be better served if those pos- 
sessing definite criminal tendencies were subjected to 
kindly but permanent detention, and in this manner 
prevented from bringing into the world others like 
themselves." Professor K. Pearson writes: "Our 
highly-developed human Efympathy will no longer al- 
low us to watch the State purify itself by aid of 
crude natural selection. We see pain and suffering 
only to relieve it, without inquiry as to the moral 
character of the sufferer or as to his national or 
racial value. And this is right — no man is respon- 

8 Loo, oit,t p. 85. 



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258 EUGEmos and moral theology 

sible for his own being; and nature and nurture, over 
which he had no control, have made him the being he 
is, good or evil/^ * 

The doctrine that the thief and the murderer are 
not responsible for their crimes, that in committing 
them they were not free but necessarily determined 
by physical forces just like the earthquake, is a most 
comfortable doctrine for the criminal classes, and one 
which they are not slow to apply in practice, as the 
statistics of increasing crime show. Only, the doc- 
trine is not scientific, nor does it make for the im- 
provement of the race. We protest then, in the name 
of science and morals, against necessitarianism being 
made the basis of Eugenics. 

Sir Francis Galton claimed that as Eugenics 
strengthens the sense of social duty in so many im- 
portant particulars, it should find a welcome home in 
every tolerant religion. He looked forward to the time 
when it would be accepted as a quasi-religion.*^ Pro- 
fessor K. Pearson complains that he has not noticed 
that this first principle of duty to the race, of na- 
tional morality, has been fully insisted on by our 
ethical writers.^ But he, too, looks forward to the 
time when Eugenics will have become "a creed of 
action." He quotes with approval words of Sir P. 
Galton: "Eugenic belief extends the function of 
philanthropy to future generations, it renders its ac- 
tions more pervading than hitherto, by dealing with 
families and societies in their entirety, and it en- 

* The Scope of National Eugenics, p. 37. 

» Essays in Eugenics, pp. 68, 108. 

« The Scope of National Eugenics, p. 41. 



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EUGENICS AND MORAL THEOLOGY 259 

forces the importance of the marriage covenant by 
directing serious attention to the probable quality 
of the future offspring. ... In brief, Eugenics is 
a virile creed, full of hopefulness, and appealing to 
many of the noblest feelings of our nature.'^ ^ 

In reply to this we may say that the scope and ob- 
ject of Eugenics are truly admirable, and that they 
already form an important element in the Christian 
religion. Christianity has always insisted on the 
virtue of Charity, which obliges us to love not only 
God, but our neighbor as ourselves. Catholic theo- 
logians with one accord have followed St Augustine 
and St. Thomas Aquinas in interpreting " our neigh- 
bor'^ as comprising all rational creatures who are 
capable of happiness with God, all who are loved by 
Him. Charity embraces the whole, mighty family 
of God, our Father, future generations, as well as the 
present and past. The object of Eugenics, then, the 
physical and mental good and improvement of the 
race of mankind, is part of the object of Charity, the 
chief and the noblest of the Christian virtues. If the 
spiritual good of mankind be added to the list of ob- 
jects, the end of Eugenics would be identical with 
that for which the Catholic Church exists and works. 
Eugenics in this sense is already a dogma of faith 
and a creed of action for every true Christian. How- 
ever, theology teaches that true Charity is well-or- 
dered. It looks with suspicion on eloquent profes- 
sions of love for mankind in general, especially when 
they come from men whose words and actions are full 
of hatred and malice for the particular specimens of 

T Op. oit, p. 46. 



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260 EUGENICS AND MORAL THEOLOGY 

mankind that they come across in everyday life. So, 
in the same way, although theology must approve of 
general love for future generations, still it cannot 
allow the certain good of the present generation to be 
sacrificed for the sake of the problematical benefit of 
future generations. This may explain partially why 
Christian ethics has not stressed our duty of love for 
the men of the future. They do not as yet exist, they 
are not as yet in misery and want, perhaps they never 
will be. Our obligation of loving them will be satis- 
fied by wishing them well, and not doing anything 
to injure them. The best way to avoid injuring them 
will be to show charity to the specimens of humanity 
who are already in misery and want, and to abstain 
carefully from injuring them. While then theology 
is quite at one with Eugenics as to the end to be 
aimed at, it very cautiously scrutinizes the means 
proposed for the attainment of that end. 

The most drastic remedy for the danger of degen- 
eration that threatens the nation has been proposed 
by Dr. R. R. Rentoul, of Liverpool. In 1903 he pub- 
lished a book on the Proposed Sterilization of certain 
Mental and Physical Degenerates^ and a second, en- 
larged edition, appeared in 1906 under the title — 
Race Culture: or Race Suicide f His aim was effec- 
tually to prevent degenerates from propagating their 
kind, and for this purpose he advocated the surgical 
operations of vasectomy and fallectomy. "The op- 
eration consists in excising and ligaturing the divided 
ends of, in the male, the vasa deferentia, or spermatic 
cords, and in the female, the fallopian tubes.'^ ® 

• Race Culture, or Race Suicide f p. 144. 



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EUGENICS AND MORAL THEOLOGY 261 

Voluntary sterilization was to be permitted in the 
case of women with deformed pelvis^ or diseased 
wombs^ In the ease of those who suffered from in- 
sanity when pregnant or after childbirth, and in the 
case of both men and women who suffered from any 
incurable diseases of the lungs or other chief organ. 
Compulsory sterilization was to be applied to "all 
idiots, imbeciles, feeble-minded, epileptics, lunatics, 
deaf-mutes, defective and backward children, habit- 
ual inebriates, habitual vagrants, public prostitutes, 
many sexual perverts, and markedly neurotic persons. 
To all these we must say: You may marry if you 
wish — we do not advise you ; you may have sexual 
intercourse — we cannot prevent you ; you are jerry 
empire builders, and a grave danger to the nation, 
and so we cannot and will not permit you to hand 
down your degeneracy to inoffensive and harmless 
children, or to add to the sum-total of human para- 
sites, who, by loading the already overtaxed taxpayer, 
prevents him from marrying, or drives him to restrict 
the increase of his family." ® It is obvious that there 
would be grave danger of making mistakes, especially 
with regard to backward children, and doing irrep- 
arable injury to those who otherwise might have be- 
come very healthy stock. To prevent such mistakes 
and possible abuse. Dr. Bentoul suggests that: " No 
person should perform the operation of sterilization 
for the purpose of preventing the begetting of d^en- 
erates, without the official permission of the Lunacy 
Commissioners of England, Scotland, or Ireland; 
and the Commissioners should inquire into the his- 
9 Race CuUure, or Race Suicide f p. 146. 



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262 EUGENICS AND MORAL THEOLOGY 

tory of the person to be operated upon, and take any 
other steps they consider necessary. No person 
should operate except those specially appointed by 
the Commissioners;" besides other recommenda- 
tions-*^ 

This proposal has been discussed from the moral 
point of view in several of the theological magazines 
of Europe and America. One or two American 
writers have maintained the lawfulness of the opera- 
tiouy but all the rest that I have seen are against it 
There is some conflict of expert opinion about the 
physical effects and consequences of the operation, 
but even if we admit Dr. BentouPs contention that if 
properly performed no external deformity or other 
evil effects of any sort follow from it, yet physio- 
logically and morally the operation is a serious mu- 
tilation of the human body in a most important or- 
gan. Such a mutilation can only be allowed when 
it is necessary in order to save the whole body, or 
by public authority in punishment for crime, as theo- 
logians commonly teach with St. Thomas. We must, 
then, according to the common opinion, pronounce 
against the lawfulness of the Bentoul operation. Of 
course there would be a further difficulty from the 
moral point of view against the marriage or the use 
of marriage by males who had undergone the opera- 
tion. Morally they would be eunuchs, whom Sixtus 
V. declared to be incapable of marrying or of using 
marital rights." With r^[ard to women who had 

10 Op. cit, p. 146. 

11 Constitntion, Cum frequenter, 22 June, 1687. 



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EUGENICS AND MORAL THEOLOGY 268 

undergone fallectomyy the question of impotence is 
not so clear. Adh/ac sub judice lis est. 

We must point out a flaw in an argument which 
Dr. Bentoul frequently employs in support of his 
proposal. " We cannot and will not permit you," he 
says, " to hand down your degeneracy to inoffensive 
and harmless children," On p. 2 he writes: "My 
simple contention is . . . that no person, sane or in- 
sane, has the right to punish an innocent child by 
inflicting it with any bodily or mental disease, so that 
it either dies prematurely or is a mental or physical 
cripple. Such punishing is murder — murder of life, 
murder of health, murder of success, and murder of 
everything worth having." On p. 9: "We shall 
have compassion upon you and the coming race. We 
shall prevent you from begetting more degenerates. 
We shall form ourselves into a real society for the 
prevention of cruelty to children." 

It is obvious that there is a fallacy here. The al- 
ternative does not lie between the same person be- 
getting healthy and unhealthy children. There is no 
question of preserving future children that are des- 
tined to be born from bodily or mental taint. The 
alternative is clearly between existence and non-ex- 
istence of the children. The sterilized have no chil- 
dren ; if they had not been sterilized they might have 
had children, and some of these might have inherited 
the parental taint But to exist even with a taint 
is better than not to exist at all. Materialists and 
those who confine themselves to the consideration of 
the present life may dispute or deny this proposition. 



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264 EUGENICS AND MORAL THEOLOGY 

but for a Christian who believes that at best this life 
is only a preparation for a future eternity of happi- 
ness^ the proposition cannot admit of doubt Not 
only are degenerates as capable as the most robust 
and healthy of attaining the true end of human ex- 
istence^ but in many respects they are more fitted to 
attain it. The calendar of Christian saints would 
be much shorter^ nay, it would be robbed of some of 
its most glorious names, if all the degenerates 
were to be removed from it. But even if we confine 
our attention to the present life, is it so certain that 
it would be better for being deprived of its degen- 
erates? Is it not true that the cripple and the other- 
wise unfit are often the sunny spot in the life of the 
family? Often enough their very weakness and un- 
fitness call forth all the capacities for the purest and 
sweetest affection in those around them. If we had 
not the unfit, we should miss some of the noblest and 
most beautiful traits that human nature can show. 
No, although bouncing health is a great blessing, and 
I by no means desire the production or multiplica- 
tion of the degenerate, still, if we take a wider view 
of life, we shall have to confess that both this world 
and the next would be the poorer if it were not for 
some degenerates. 

The moralist would find less dif&culty in admitting 
the power of the State to infiict sterilization as a 
penalty for crime. In Catholic times, a still more 
severe punishment was the legal penalty for rape in 
England, as Bracton informs us. ^^Quod quidem 
crimen si convincatur, sequitur poena, scilicet amis- 
sio membrorum ut sit membrum pro membro, quia 



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EUGENICS AND MORAL THEOLOGY 265 

virgo cum corrumpitur, membrum amittit, et ideo 
corrupter puniatur in eo in quo deliquit, oculos igitur 
amittat propter aspectum decoris, quo virginem con- 
cupivit, amittat et testiculos, qui calopem stupri in- 
duxerunt.^' ^^ 

Professor Schmitt, in the Innsbruck Zeitschrift 
for January, 1911, will not countenance the infliction 
of vasectomy as a punishment for crime. Mutilation 
is not in keeping with modem humanitarian ideas, 
and the painlessness of the operation makes it unfit 
to be used as a deterrent However this may be, 
there does not seem to be any grave moral objection 
to such a use of vasectomy or fallectomy, if the State 
so decreed. 

Dr. EentouFs proposal has met with a certain 
amount of support from the non-theological world. 
Boards of Guardians have discussed it, but the more 
cautious and authoritative among eugenists them- 
selves tell us that it would not be safe to practise 
such methods for preventing degeneracy in the pres- 
ent state of knowledge on the subject. According to 
a writer in the Times, March 2, 1911, such measures 
"have never commended themselves to the public 
conscience. In America they have been tried and 
found wanting. The same end is attained by^ lifelong 
detention.'^ Professor J. A. Thomson writes of it in 
this strain : " Some have taken up an extreme UUs- 
sez'faire position, which, as human society is consti- 
tuted, is quite untenable. . . . Others, going to the 
opposite extreme, have advocated what may be called 
surgical methods for both sexes to a degree that is 

i« De LegibuB Anglicp, lib, iU., tract 2, c. 2S. 



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266 BVGBNI08 A^D MORAL THEOLOGY 

more than spartan." ^* The same writer protests on 
the following page against those who " do not hesi- 
tate to suggest methods of surgical elimination to an 
extent that is almost grotesque.'^ 

We may then conclude that neither morality nor 
science approves of the sterilization of the degenerate 
in order to prevent them from propagating their kind. 
We are glad to associate ourselves with Dr. Bentoul 
in his uncompromising condemnation of medical 
abortion when used for the same purpose^ as some 
medical authorities have proposed.^* 

Apart from the employment of surgical operations, 
such as have been mentioned, as far as I can see moral 
theology would have no insuperable difficulty in al- 
lowing other means which have been proposed by 
eugenists to improve the race and to remedy national 
degeneration. Many of them it would cordially ap- 
prove. The two sciences are quite at one in their 
condemnation of race suicide by the artificial restric- 
tion of the number of children. If the teachings of 
moral theology on this subject and on matters con- 
nected with it were more insisted on and practised, 
there would perhaps be no need for other measures. 
Moral theology condemns not only race suicide, but 
the causes which have made it a national danger in 
our time. It condemns the cursed greed of gold 
which is at the root of the increasing difficulty in get- 
ting an honest livelihood for oneself and family. 
Business methods tend to oust justice and charity. 
It condemns the immoderate pursuit of pleasure and 
amusement which makes the modem woman unwill- 

18 Hereditp, p. 629. i* Op. cit., p. 170. 



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BUGENI08 AND MORAL THEOLOGY 267 

Ing to submit to the duties of motherhood. It con- 
demns pride which leads people to live in a style 
above their means, and vie with their neighbors in 
foolish display and ostentation. It condemns the 
luxurious and artificial lives often led by the wealthy 
classes, which in all probability are the cause of their 
diminished fertility. In other words, moral theology 
insists on the duties imposed on men by the Christian 
religion, the decay of which is the prolific cause of all 
our troubles. 

In his Huxley Lecture, October 29, 1901, Sir Fran- 
cis Galton suggested certain positive means for the 
improvement of the race. Young men and women 
might be examined eugenically, and diplomas might 
be granted to the healthy and the fit. Dowries might 
be allowed them to enable them to marry early and 
rear a numerous family. They should have healthy 
homes, honors should be bestowed on those who pro- 
vide the nation with a healthy stock, and public opin- 
ion should be roused and guided so that it will con- 
demn the marriage of the unfit and approve the mar- 
riage of the fit 

The moral theologian would have no professional 
objection to any of these proposals, whatever he 
might think of their practicability and efficacy. His 
science discourages the marriage of the unfit. If a 
man is incapable of looking after and providing for 
a family, he should not marry. If he does marry, 
he undertakes obligations which he cannot fulfil. Dis- 
ease or crime detected in one of the parties to a prom- 
ise of marriage gives the other party the right to 
break off the engagement If one of the parties is 



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268 EVGENI08 A^D MORAL THEOLOGY 

aware that he labors under some hidden disease or 
defect which in the event of marriage will be hurtful 
to the other party, he is bound to make that defect 
known to the other before marriage and give him the 
opportunity of retiring from the engagement if he 
chooses. People laboring under infectious diseases 
are, of course, to be dissuaded from marrying while 
they are in that state. But as ecclesiastical law 
stands at present, such persons are not absolutely 
prohibited from marrying one who knows of the dis- 
ease and who is willing to take the risks. The Church 
has always considered that those who wish to marry 
and have not voluntarily renounced it, have a strict 
right to do so, and that neither she nor the State can 
interfere with that right except for the greatest rea- 
son. Thus she allowed lepers to marry even with the 
probability that if children were bom they would 
inherit the parental taint. Theologians teach that 
the rule laid down for lepers may be applied to other 
infectious diseases. It is better, they say, to be born 
a leper, than not to be born at all.^^ Without doubt, 
a chief reason for this teaching is the grave moral 
danger to souls which would be the consequence of 
enforced celibacy. After all, we must guard against 
not only bodily disease, but the far more terrible 
diseases of the souL It is natural that the Christian 
theologian and the materialist should not be able to 
look at such questions in quite the same light They 
differ radically in their estimate of values. 

Many eugenists advocate the segregation or life- 
long detention of degenerates. According to the 

15 Wemz, Ju8, decret., iv., n. 253 ff. 



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BUGENI08 AND MORAL THEOLOGY 269 

Poor Law Number of the Eugenics Review for 
November, 1910: "In respect to any representa- 
tive of undesirable stocky the principle states that 
the community will keep him alive, will give him 
Bympathjy protection and kindly treatment, but that 
the interest of the future demands that he shall be 
denied the privilege of parenthood. The community 
may, if it likes, provide palaces for its paupers, 
feeble-minded, criminals and alcoholics, to induce 
them to forego their desire to be progenitors of their 
kind through all future generations, in complete as- 
surance that it will be well repaid in a hundred years. 
A cheaper alternative method is enforced kindly de- 
tention. The right of the subject may be anything 
but the right to curse the future " (p. 171). 

The moralist would find no difficulty in these pro- 
posals except perhaps in the last. Enforced deten- 
tion or segregation would mean a virtual prohibition 
of marriage and its use to the degenerate. As was 
said above, this would be contrary to modem ecclesi- 
astical law, but if it were shown to be for the common 
good, the Church might change her discipline on the 
point. She has made impediments of marriage for 
the common physical good of her children in the past^ 
and she would not be slow in the future to sanction 
necessary or useful means to ensure the health of the 
community. Her past legislation affords several in- 
structive parallels. Thus, in the old canon law, many 
crimes and transgressions were punished by forbid- 
ding the criminal to marry. Pirhing enumerates 
seven such crimes : becoming godparent of one's own 
child in baptism, murder of a priest, solemn and pub- 



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270 EUGENICS AND MORAL THEOLOGY 

lie penance while it lasted, knowingly and sacri- 
legiously marrying a nun, wife murder, abduction of 
another's bride, incest with a wife's relations within 
the second degree.*^ So that if it were shown to be 
for the common good that certain habitual criminals 
should be prevented from propagating their kind, I 
do not think that the Church would stand in the way 
of such an enactment 

What was formerly done with the approval of the 
Church in the case of lepers might again be done to 
all who labor under infectious diseases. They were 
segregated and inclosed in lazar-houses. Although 
the old canon law enjoined on the bishop the duty of 
exhorting the consort of a leper to follow him and 
minister to him with conjugal affection, yet there was 
no strict obligation to do so, and the ordinance was 
subsequently modified. Pirhing expressly notes that 
the custom of segregation was approved by the canon 
law, which allowed such lepers to have their own 
Church and priest." 

We must not be in too great a hurry to introduce 
restrictive legislation of the kind suggested. Eu- 
genists and students of heredity are by no means 
agreed as to whether acquired characters and dis- 
eases in general are transmitted to offspring by their 
parents. Much observation and study will be re- 
quired before legislation can be proposed with safety. 
In the Herbert Spencer Lecture, delivered before the 
University of Oxford, June 5, 1907, Sir Francis Gal- 
ton uttered a warning against too great precipitation 

le Pirhing, Jus canon,, lib. Iv., tit 16, n. 11. 
IT Ubi supra, n. 4. 



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BUGENI08 AND MORAL THEOLOGY ' 271 

in ffiis matter. He said: ^^ Enough is already 
known to those who have studied the question to leave 
no donbt in their minds about the general results^ but 
not enough is quantitatiYely known to justify legisla- 
tion or other action except in extreme cases. Con- 
tinued studies will be required for some time to come, 
and the pace must not be hurried.'' 



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XV 
OIVIL LAW AND CONSCIENCE 

SoMB time ago a paragraph appeared in the daily 
papers describing how a conscientious superintendent 
of police had taken a summons out against himself, 
and had been fined five shillings for riding his bicycle 
without a light. A clergyman, he said, had spoken 
to him on the subject, and this had brought the offense 
home to him. Punch recorded the incident, and took 
the opportunity to show what such views about the 
obligation of the law might be expected to lead to, if 
they became general. In one corner of the page, mas- 
ter Bob, with a woe-begone expression, was present- 
ing a birch-rod to his mother, and confessing that he 
had been at the jam again. Below, a cabby was tak- 
ing out a summons against himself for charging a 
fare sixpence too much. Opposite was a learned 
judge closing proceedings in his court by fining him- 
self £20 and costs for betting in a place within the 
meaning of the Act; and in the middle, stood an auto- 
matic conscience clearer, armed with iron fists, 
worked on the penny-in-the-slot principle, for infiict- 
ing summary punishment on delinquents for minor 
offenses. 

No doubt the honest superintendent's conscience, 
or that of hia clergyman, was somewhat strict, for 

272 



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CIVIL LAW AND CONSCIENCE 273 

whatever may be the obligation of the law^ it would 
seem to be certain that it does not bind delinquents 
to execute its penalties on themselves. But how does 
civil law bind the conscience? What obligation, if 
any, does English civil law impose on the conscience? 
It may be worth while to examine this question from 
the point of view of Moral Theology. 

There can be no doubt that the civil lawgiver can 
bind the consciences of his subjects by his laws. This 
is the plain teaching of St Paul in Romans xiii. 
1-5: 

Let every soul be subject to higher powers: for there is 
no power but from Ood : and those that are, are ordained 
of (Jod. Therefore he that resisteth the power, resisteth 
the ordinance of (Jod. And they that resist, purchase to 
themselves damnation. For princes are not a terror to the 
good work, but to the evil. Wilt thou then not be afraid 
of the power? Do that which is good : and thou shalt have 
praise from the same. For he is God's minister to thee, 
for good. But if thou do that which is evil, fear: for he 
beareth not the sword in vain. For he is God 's minister : 
an avenger to execute wrath upon him that doth evil. 
Wherefore be subject of necessity, not only for wrath, but 
also for conscience' sake. 

According to Christian teaching^ then^ the civil 
ruler can bind the consciences of his subjects, so that 
they offend God if they disobey a strict precept im- 
posed by him. His power to do this does not depend 
on his having correct theological views, for St Paul 
prescribes obedience to the Roman emperors, who 
knew nothing at that time about Christianity. 

But though we must concede that the civil ruler has 
the power to bind the consciences of his subjects un- 



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274 CIVIL LAW AND CONSCIENCE} 

der sin, it does not follow that all his laws do in fact 
bind under sin. For one who has authority to com- 
mand may use all his power or not, as circumstances 
require, and as he judges fit. It is often better for a 
father to signify a desire that a son should do what 
he wants, rather than to impose on him a rigorous 
command. What is wanted will be gained quite as 
surely, and more sweetly, in the former manner than 
in the latter. It is not desirable that a father should 
always use his full authority when he commands his 
children. And in like manner, any superior whose 
office it is to direct the actions of his subjects to the 
common good, and to whom Ood grants the authority 
necessary for this purpose, will often gain his end 
quite as surely, and more sweetly, if he refrains from 
using his full power on every occasion. And as the 
end in view is the chief thing to be considered, if the 
end can be gained by sweet and easy means, why 
should not these be preferred? A superior can in- 
deed impose a precept which will bind the conscience 
under sin, but he need not necessarily do so, if the end 
can be obtained by simply expressing a desire; in 
other words, as a superior can impose a command or 
refrain from doing so, as he judges best, so the obliga- 
tion which the superior's command imposes on his 
subjects may be greater or less, as he judges best 
As the existence of the obligation depends on his will, 
so the quality also of the obligation depends on his 
will. This of course does not imply that the su- 
perior's will is the only source of obligation, or that 
it can change the nature of things. If an obligation 
not to commit murder has already been imposed by a 



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CIVIL LAW AND CONSCIENCE 275 

higher authority, a subordinate authority cannot im- 
pose a binding precept to commit murder. A lower 
superior can only use the power that has been granted 
him. He effects nothing if he attempts to transgress 
the limits of his authoriiy, whether those limits be 
set by a higher superior from whom he derives his 
authority, or by the nature of things. So that a 
human lawgiver cannot impose just what laws he 
pleases. If he attempts to command what God for- 
bids, his command cannot bind the conscience; he 
may indeed, by using his superior might, punish those 
who refuse to obey, but he cannot make their dis- 
obedience wrong. It will be a right action approved 
by God and good men. "We ought to obey God 
rather than men.^^ 

However, if the common good should require it, a 
human lawgiver may prohibit what God prohibits, 
and command what God commands, and enforce these 
laws by human sanctions. Thus He forbids theft, 
and commands parents to support their children. 
And such laws certainly bind the conscience, so that 
a subject who violates them, not only sins against the 
law of God, but also against the law of his country. 
He makes himself liable to punishment both from 
God and men. 

All, I think, are agreed upon this, that human laws 
which are declaratory of the divine or natural laws 
bind the consciences of subjects. So that civU laws 
forbidding murder, theft, and other crimes; selling 
poisons without due precautions, selling beer to those 
who have already had too much, disseminating in- 
decent literature, bind the conscience under sin. 



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276 CIVIL LAW AND CONSCIENCE 

And similarly positive precepts which command what 
is already obligatory by the Divine or natural law 
also bind the conscience under sin. So that a father 
is bound to support his wife and children according to 
his ability, not only because the Divine and natural 
law commands it^ but also because the municipal law 
enforces it 

The same, too, as all I think are agreed, must be 
said of those civil laws which determine the natujal 
law, where of itself it is indeterminate. For the nat- 
ural law is concerned rather with general precepts 
than with particular circumstances and cases. Often 
it suggests and persuades rather than prescribes. 
It indicates what is desirable rather than imposes a 
definite obligation. In such cases it is the province 
of the positive law to step in and, for the common 
good, determine what was before indeterminate, that 
there may be a definite rule of action, that subjects 
may not be left in perilous uncertainty about their 
rights and duties, so that there may not be continual 
lawsuits. When it has done so, the rule laid down 
will be a guide, not only for the external conduct, 
but also for the conscience. And so the Prescription 
Act, the Married Women's Property Act, Infants' 
Relief Act, and other laws of the like nature form 
rules of conscience as well as of law. 

The law of nature suggests that if a man has been 
in peaceful possession of property for a long time, 
and in good faith, thinking it to be his own, he should 
not be disturbed, even though it afterwards appears 
that another had a better title. The natural law 
does not indeed of itself in 9uch a case transfer the 



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CIVIL LAW AND CONSCIENCE 277 

ownership of the property, it only snggests that it 
would be for the common good, that it would make 
owners of property more watchful of their rights, 
that it would lessen the number of troublesome law- 
suits, if long and peaceable possession, with good 
faith, gave a title to property. And so the positive 
law steps in, and enacts that prescription shall be 
a good title to property. Positive law determines 
and defines the conditions of prescription, and its pro- 
visions hold good for the conscience, as well as for 
the external forum. And the same is true of other 
positive laws, which for the common good determine 
and define the law of nature. In like manner the 
sentence of the judge, in a doubtful case of confiict- 
ing rights, provides a safe rule for conscience, and 
obliges the contending parties. 

In all these cases the obligation does not arise 
purely and simply from the positive law, there is a 
root of obligation already existing which the positive 
law declares or determines. But such cases are far 
from exhausting the whole subject-matter of positive 
law. There remains a very large field of more or less 
indifferent actions, where man's liberty is restrained 
neither by the Divine nor by the natural law. As 
far as (Jod's law or the law of nature is concerned, 
very many actions are neither prescribed nor pro- 
hibited ; they may be done or left undone, done in this 
way or in that, and whichever course be chosen a 
man's conscience will be free, as far as the Divine or 
natural law is concerned. And yet it is often well 
that the law should interfere, with prudence indeed 
and moderation, in matters that are of themselves in- 



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278 CIVIL LAW AND 00N8CIBN0B 

different Thus with regard to work in factories, the 
conditions of labor might, absolutely Bpeskingy be 
left to be arranged by the humanity of the employers, 
or by mutual agreement between employers and em- 
ployed; but experience has shown that it is desirable 
for the civil authority to step in, and so we have the 
Factory Acts. They forbid working overtime, or un- 
der a certain age, prescribe certain precautions to be 
taken for the sake of health, they limit in many ways 
the natural liberty of masters and men. 

We have also positive laws relating to the regula- 
tion of mines, enactments concerning the raising of 
revenue, Elementary Education Acts, laws forbidding 
certain contracts, as for example, in restraint of 
trade, and so forth. How do such laws as these affect 
the conscience? Is it a sin to violate them, just as it 
is a sin to violate those which declare or determine 
the Divine or natural law? And here of course we 
suppose that there is no obligation in conscience aris- 
ing from some other source than the positive law. 
For our purpose we eliminate other possible sources 
of obligation, and merely consider the positive law. 
Thus, it may be, that the owner of a coal-mine knows 
that there is fire-damp in his mine, and that it is 
exceedingly dangerous to work in it. Then, of course, 
both he and the men are bound to take such pre- 
cautions as will enable the work to be carried on 
with comparative safety. The hours of labor, too, are 
restricted in a sense by the natural law, which pre- 
scribes a reasonable care of life and health. But for 
the purpose of our inquiry, we disregard such cases 
as these; we suppose cases in which there is no obli- 



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CIVIL LAW AND COVBCIBVOE 279 

gation arising from the natural law^ and we wish to 
aacertain what, if any, obligation is imposed by posi- 
tiTe law. If a factory-master, knowing that his 
hands did not object, were to work half an hour over- 
time, when there is a brisk demand for his goods, and 
that in spite of, and in the teeth of the law, would he 
commit a sin, or what obligation would he violate? 

The lawgiver has the power to bind the conscience 
even in such indifferent matters as these, as all ad- 
mit and as we have already seen. But, as we have 
seen, he need not always use his power to the full 
extent He may indeed intend to bind his subjects 
to obey his laws even in indifferent matters under 
pain of sin, and assign a sanction or penalty to be in- 
flicted on those who break the law. Or, without in- 
tending to impose a strict obligation under pain of 
sin, he may be satisfied that he can secure substantial 
obedience to his laws, by merely assigning a penalty 
to be endured for violations of the law. The former 
are called by divines moral laws, the latter are called 
penal laws. A moral law imposes an obligation un- 
der sin in conscience, and usually assigns a penalty 
for breaches of it ; a penal law only imposes the obliga- 
tion of submitting to the penalty when lawfully ex- 
acted* A breach of a moral law is a sin, a breach of 
a penal law is not a sin, if one be prepared to pay the 
penalty if levied. The question as to whether posi- 
tive municipal laws are moral laws or penal laws is a 
celebrated one. 

Martin Azpilcueta, the celebrated Doctor of Na- 
varre, and on that account usually styled Navarrus, 
held, in the sixteenth century, that the positive laws 



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280 CIVIL LAW AND C0N8CIEN0B 

of secular princes did not bind the conscience. ^' An- 
cient custom,'' he says, "seems to have interpreted 
in this sense secular laws especially, concerning whose 
transgression it has not been usual to disturb the con- 
sciences of learned or unlearned, penitents or confes- 
sors, or men of any condition, order, or sex, except 
when the Divine, natural, revealed, or canon law was 
also at the same time broken ; and this because infidel 
lawgivers care nothing about eternal punishment, and 
there are very few Christian secular princes who say 
that it is their intention in making laws, while im- 
posing a temporal penalty, to bind also to eternal 
punishment, when the Divine or natural law does not 
80 bind/' ^ 

Although a few other theologians held the same 
view, the common opinion was against it In Eng- 
land, Anglican divines, as was to be expected, were 
strongly on the side of the stricter opinion. Jeremy 
Taylor admits indeed that " this question is so dubi- 
ous and unresolved, that Cajetan and Henricus de 
Oandavo did suppose it fit to be determined by the 
Pope in cathedra, as thinking it otherwise to be in- 
determinable." * However, he not only maintains 
that positive civil laws bind under sin, but that to say 
that a law does not bind under sin is a contradiction. 
He does not seem to have grasped the idea of a penal 
law in the theological sense. Sanderson, in his able 
book, De obligatione conscientice, explains at consid- 
erable length what is meant by penal laws; but while 
admitting that they may exist, he does not say that 

1 Manuale, c. 28, n. 55. 

2Ductor duMt, Bk. III., c. 1, r. 1, n. 2. 



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CIVIL LAW AND CONSCIENCE 281 

they actually do exist in England^ and he maintains 
the general proposition that positive municipal laws 
bind the conscience under sin. This continued to be 
the common opinion in England down to our own 
day, in spite of the great weight of Sir William Black- 
stone's authority in favor of the milder view. This 
eminent lawyer gives his opinion on the question so 
clearly and well, that I am tempted to give it in his 
own words: 

It is true, it hath been holden, and very justly, by the 
principal of our ethical writers, that human laws are bind- 
ing upon men's consciences. But if that were the only or 
most forcible obligation, the good only would regard the 
laws, and the bad would set them at defiance. And, true 
as this principle is, it must still be understood with some 
restriction. It holds, I apprehend, as to rights; and that 
when the law has determined the field to belong to Titius, 
it is matter of conscience no longer to withhold or to invade 
it. So also in regard to natural duties, and such offenses 
as are mala in se: here we are bound in conscience, because 
we are bound by superior laws, before those human laws 
were in being, to perform the one, and abstain from the 
other. But in relation to those laws which enjoin only 
positive duties, and forbid only such things as are not 
mala in se, but mala prohibita merely, without any inter- 
mixture of moral guilt, annexing a penalty to non-compli- 
ance, here I apprehend conscience is no farther concerned, 
than by directing a submission to the penalty, in case of 
our breach of those laws: for otherwise the multitude of 
penal laws in a state would not only be looked upon as an 
impolitic, but would also be a very wicked thing ; if every 
such law were a snare for the conscience of the subject. 
But in these cases the alternative is offered to every man ; 
''either abstain from this, or submit to such a penalty;" 
and his conscience will be clear, whichever side of the 



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282 CIVIL LAW AND CONSCIENOE 

alternative he thinks proper to embrace. Thus, by the 
statutes for preserving game, a penalty is denounced 
against every unqualified person that kills a hare, and 
against every person who possesses a partridge in August. 
And 80, too, by other statutes, pecuniary penalties are in- 
flicted for exercising trades without serving an apprentice- 
ship thereto, for not burying the dead in woolen, for not 
performing the statute-work on the public roads, and for 
innumerable other positive misdemeanors. Now these pro- 
hibitory laws do not make the transgression a moral offense, 
or sin: the only obligation in conscience is to submit to 
the penalty, if levied. It must however be observed, that 
we are here speaking of laws that are simply and purely 
penal, where the thing forbidden or enjoined is wholly a 
matter of indifference, and where the penalty inflicted is 
an adequate compensation for the civil inconvenience sup- 
posed to arise from the offense. But, where disobedience 
to the law involves in it also any degree of public mis- 
chief or private injury, there it falls within our former 
distinction, and is also an offense against conscience.' 

It will not be necessary to defend this clear exposi- 
tion of a very probable opinion concerning the obli- 
gation of English positive law, from the not always 
very intelligent criticism of Blackstone's commenta- 
tors. Since his time a notable change of view has 
taken place in the English legal world concerning the 
nature and obligation of positive law. The school of 
thought represented by Hobbes, Locke, Bentham, and 
Austin, seems to have become predominant, and to 
have succeeded in a large measure in ousting the more 
orthodox views of Blackstone. And as the obliga- 
tion of positive law depends rather on him who en- 
forces it, than on the original lawgiver, we will briefly 

« Commentaries on the Laws of England, i., p, 57. 



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CIVIL LAW AND 00N8CIBN0B 283 

examine the Austinian conception of la^, and see how 
it aflfects the conscience. Austin's theoiy of law and 
of the obligation which it imposes may be gathered 
from the following extracts from his Lectures on 
Jurisprudence: 

Every law or ride is a commtrnd. And since the term 
command is the key to the sciences of jurispmdence and 
morals, its meaning should be analyzed with precision. 
... If yon express or intimate a wish that I shall do or 
forbear from some act, and if you will visit me with an 
evil in case I comply not with your wish, the expression 
or intimation of your wish is a command. A command is 
distinguished from other significations of desire, not by 
the style in which the desire is signified, but by the power 
and the purpose of the party commanding to infiict an evil 
or pain in case the desire be disregarded. If you cannot 
or will not harm me in case I comply not with your wish, 
the expression of your wish is not a command, although 
you utter your wish in imperative phrase. If you are able 
and willing to harm me in case I comply not with your 
wish, the expression of your wish amounts to a command, 
although you are prompted by a spirit of courtesy to utter 
it in the shape of a request. . . . 

A command, then, is a signification of desire. But a 
command is distinguished from other significations of de- 
sire by this peculiarity: that the party to whom it is 
directed is liable to evil from the other, in case he comply 
not with the desire. 

Being liable to evil from you if I comply not with a 
wish which you signify, I am bound or obliged by your 
command, or I lie under a duty to obey it. If, in spite 
of that evil in prospect, I comply not with the wish which 
you signify, I am said to disobey your command, or to 
violate the duty which it imposes. 

Command and duty are, therefore, correlative terms : the 
meaning denoted by each being implied or supposed by 



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284 CIVIL LAW AND C0N80IEN0B 

the other. . . . Concisely expressed, the meaning of the 
correlative expressions is this. He who will inflict an evil 
in case his desire be disregarded, ntters a command by 
expressing or intimating his desire. He who is liable to 
the evil in case he disregard the desire, is bound or obliged 
by the command. 

The evil which will probably be incurred in case a com- 
mand be disobeyed or (to use an equivalent expression) in 
case a duty be broken, is frequently called a sanction, or 
an enforcement of obedience. ... In short, I am deter- 
mined or inclined to comply with the wish of another, by 
the fear of disadvantage or evil. I am also determined or 
inclined to comply with the wish of another, by the hope 
of advantage or good. But it is only by the chance of 
incurring evU, that I am bound or obliged to compliance. 
It is only by conditional evU, that duties are sanctioned or 
enforced. It is the power and the purpose of inflicting 
eventual evil, and not the power and the purpose of im- 
parting eventual good, which gives to the expression of a 
wish the name of a command^ 

Such are Austin's views on the nature of law, duty, 
and obligation. They are views which are now com- 
monly held in English legal circles. They are the 
views which form the basis of the science of jurispru- 
dence as it is now taught at our national universities, 
explained and enforced in the leading encyclopaedias 
and law books. They are, we believe, utterly false, 
and in the end subversive of peace and order. As 
long indeed as the majority in a nation hold the true 
principles of authority, right and justice, there is 
every probability that the nation's laws will be con- 
formed to those principles ; but if socialism gains over 
the majority, then there appears no reason why, act- 

* Lectures on Jurisprudence, Vol. I., p. 90. 



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CIVIL LAW AND 00N8CIBN0B 285 

ing on these principles^ the law will not become so- 
cialistic^ why it will not impose an obligation on those 
who have^ to transfer their belongings to those who 
have not, and if they do not obey, the law will have 
its sanctions to compel thenu International politics 
teach us what to expect in domestic affairs. The pos- 
sessions of the weaker nations are being divided 
among the stronger, and, politicians tell us, there is 
sure to be fighting over the spoil. It is: 

The good old rule, the simple plan 
That they should take who have the power 
And they should keep who caa. 

The whole civilized world has recently been shocked 
by the application of such principles on a large scale. 

If one should be so benighted as to use the old ar- 
gument that unjust laws are against the law of God, 
and have no validity, he has already been impatiently 
and indignantly answered by Austin : 

Now, to say that human laws which conflict with the 
Divine law are not binding, that is to say, are not laws, 
is to talk stark nonsense. The most pernicious laws, and 
therefore those which are most opposed to the will of Gk>d, 
have been and are continually enforced as laws by judicial 
tribunals. Suppose an act innocuous, or positively bene- 
ficial, be prohibited by the sovereign under the penalty of 
death ; if I commit this act, I shall be tried and condemned, 
and if I object to the sentence, that it is contrary to the 
law of God, who has commanded that human lawgivers 
shall not prohibit acts which have no evil consequences, the 
Court of Justice will demonstrate the inconclusiveness of 
my reasoning by hanging me up, in pursuance of the law 
of which I have impugned the validity. An exception, 
demurrer, or plea founded on the law of Gkxi was never 



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286 OIVIL LAW AND OOVBCIBVOB 

heard in a Court of Justice, from the creation of the world 
down to the present moment. 

But this abuse of language is not merely puerile, it is 
mischievous. When it is said that a law ought to be dis- 
obeyed, what is meant is that we are urged to disobey it 
by motives more cogent and compulsory than those by 
which it is itself sanctioned. If the laws of God are cer- 
tain, the motives which they hold out to disobey any human 
command which is at variance with them, are paramount 
to all others. But the laws of Ood are not always certain. 
All divines, at least all reasonable divines, admit that no 
scheme of duties perfectly complete and unambiguous was 
ever imparted to us by revelation. As an index to the 
Divine will, utility is obviously insufficient. What appears 
pernicious to one person may appear beneficial to another. 
And as for the moral sense, innate practical principles, 
conscience, they are merely convenient cloaks for ignor- 
ance or sinister interest ; they mean either that I hate the 
law to which I object and cannot tell why, or that I hate 
the law, and that the cause of my hatred is one which I 
find it incommodious to avow. If I say openly, I hate the 
law, ergo, it is not binding and ought to be disobeyed, no 
one will listen to me ; but by calling my hate, my conscience 
or my moral sense, I urge the same argument in another 
and a more plausible form: I seem to assign a reason for 
my dislike, when in truth I have only given it a sounding 
and specious name." 

One wonders what Auetin would have said to the 
officers of a socialistic government which had just 
passed a law abolishing private property, when they 
should come to him to enforce the law, by requiring 
him to give up the fruits of his labor and thrift But 
as a rule ideas work themselves out too slowly to 
permit of us seeing the spectacle of the real author 

B LeoturcB on Jurisprudence^ 1., p. 221. 



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CIVIL LAW AND C0N80IBN0B 287 

of anarchy and revolution tasting the fruita of hia own 
principles. 

However^ we are not concerned with the refutation 
of Austin's views on jurisprudence. We wish to see 
how they bear on civil law and conscience. For if 
they are the views which prevail now in Ehigland in 
legal circles, we may infer that the obligation which 
those who make and enforce the laws wish to impose 
upon us, is the obligation of positive law as Austin 
understood it But the only obligation of positive 
law according to Austin, is the chance of incurring 
the evil assigned by the law as a penalty for the breach 
of it. ^^ It is only by the chance of incurring evil, 
that I am hound or obliged to compliance. It is only 
by conditional evil, that duties are sanctioned or en- 
forced.'^ '^ Being liable to evil from you if I com- 
ply not with a wish which you signify, I am hound 
or obliged by your command, or I lie under a duty 
to obey if 

It is clear that according to these views positive 
law as such imposes on the conscience no obligation 
under sin ; indeed in Austin's view to say that positive 
law as such imposes no moral obligation, is merely to 
enunciate a truism. In other words, positive law, 
according to the intention of the majority of those 
who make and enforce it, commands a thing to be done 
or to be forborne only under pain of submitting to 
the penalty enjoined in case of disobedience. So that 
we may safely maintain with Blackstone that British 
positive laws are not moral laws, but purely penal 
laws in the theological sense. 

Idealism has its representatives, it is true, among 



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288 CIVIL LAW AND 00N80IEN0B 

English philosophers. According to this school the 
only possible source of moral obligation is from 
within. As one of the chief of its writers, the late 
Professor T. H. Green says in his book on the Princi- 
plea of Political Obligation: " Morality consists in 
the disinterested performance of self-imposed duties '' 
(p. 40). And in another place — ^^ Morality and po- 
litical subjection have a common source. • . . That 
common source is the rational recognition by certain 
human beings of a common well-being which is their 
well-being and which they conceive as their well-being 
whether at any moment any of them is inclined to it 
or no, and the embodiment of that recognition in 
rules by which the inclinations of the individuals are 
restrained, and a corresponding freedom of action for 
the attainment of well-being on the whole is secured " 
(p. 124). 

It may be doubted whether this school of writers 
has much influence on English public or private life. 
In any case it is clear that there can be no question 
of sin in the violation of self-imposed rules of conduct 



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XVI 

SOME QUESTIONS CONCERNINa 
INTENTION 

Wb need not go beyond the words of Our Lord in 
the Sermon on the Mount (Matt. vi. 22; vii. 17), for 
a proof of the important bearing of our intention 
on the morality of our actions. In the sight of Gh>d 
the aim, the intention, with which we perform our 
actions, is of more importance than what we do. This 
is a commonplace of theology and of asceticism, and it 
is admitted by all who profess to guide their conduct 
by the maxims of the QospeL But though it be ad- 
mitted on all hands that the intention is the principal 
part of our deliberate actions, there is considerable 
difference of opinion among theologians on several 
points in the general doctrine of intention. Theolo- 
gians do not usually discuss these points together, but 
it may be worth while to consider them together as 
forming a portion of one body of doctrine, every part 
of which throws light on every other part. I pro- 
pose, then, to take St Thomas principally for my 
guide, and bring together for the purposes of com- 
parison and mutual illustration a few points in the 
doctrine of intention. 

Intention is nothing more than an efficacious wish 
or desire of an object; it is a movement of the will 

289 



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290 80MB QUB8TI02fS OONOBBmNG INTBNTION 

towards an end, with reference to the means which 
most be taken in order to attain that end. 

The ends of our intentions are manifold and va- 
rious as are human nature and human actions, but 
there is one which is common to all men, and in re- 
gard to which we are not free. Man necessarily de- 
sires happiness, and if happiness be taken in the ab- 
stract, it forms the object of all our endeavors. The 
will is attracted only by what seems good; it is moved 
only by what seems likely to contribute to our well- 
being; in every action, then, we seek for happiness, 
and cannot do otherwise. If we found ourselves in 
presence of an object which was wholly good, we could 
not but love and desire it; and so when the blessed 
find themselves face to face with Ood, the infinite 
source of all goodness and beauty, they are neces- 
sarily ravished with love of Him ; they cannot but love 
Him. 

However, as no other object but God is wholly good, 
and as in this world we cannot see Him face to face, 
and the attainment of the possession of Ood is accom- 
panied by labor and difficulty, so while we live on 
earth, though we necessarily seek happiness, yet we 
do not seek it necessarily in any one object; in other 
words, we are free to determine the end of our inten- 
tions according to our choice. 

If we accept the teaching of St Thomas, we are un- 
der a moral obligation to direct all our actions to the 
honor and glory of God.^ 

In this sense he interprets the words of St. Paul.* 

1 St Thomas, Sum, I.-II., q. 100, a. 10 ad 2. 
ilCop. X. 81. 



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80MB QUESTIONS CONOERmNG INTENTION 291 

However, this must not be understood as imposing 
on us an obligation to form an actual intention of 
doing our every action for God. This would be re- 
quiring more than man's weakness can bear. It will 
be sufficient if we refer every action to God virtually. 
St. Thomas explains his mind very fully and clearly 
on this point in various places of his works. Thus in 
De Caritate, a. 11, ad 2, he says : 

Ad secundum dicendum, quod omnia actu referre in 
Deum non est possibile in hac vita, dcut non est possibile 
quod semper de Deo cogitetur, hoc enim pertinet ad i>er- 
feetionem patriae; sed quod omnia virtute referantur in 
Deum, hoc pertinet ad perfectionem caritatis ad quam 
omnes tenentur. Ad cujus evidentiam considerandum est, 
quod dcut in causis efficientibus virtus primae causae 
manet in omnibus causis sequentibus, ita etiam intentio 
principalis finis virtute manet in omnibus finibus secun- 
dariis: unde quicumque actu intendit aliquem finem secun- 
darium, virtute intendit finem principalem; sicut medicus 
dum colligit herbas actu, intendit conficere potionem, nihil 
fortassis de sanitate cogitans; virtualiter tamen intendit 
sanitatem propter quam potionem dat. Sic igitur cum 
aliquis se ipsum ordinat in Deum sicut in finem, in omni- 
bus quae propter se ipsum facit manet virtute intentio 
ultimi finis, qui Deus est; unde in omnibus mereri potest, 
si caritatem habeat. Hoc igitur modo Apostolus prs^ipit 
quod omnia in Dei gloriam referantur. 

In the next paragraph St. Thomas distinguishes a 
virtual from an habitual intention of pleasing God : 

Ad tertium dicendum, quod aliud est habitualiter referre 
in Deum, et aliud virtualiter. Habitualiter enim refert in 
Deum et qui nihil agit, nee aliquid actualiter intendit, ut 
dormiens; sed virtualiter aliquid referre in Deum, est 
agentis propter finem ordinantis in Deum. Unde habitu- 



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292 80MB QUESTIONS CONCERNING INTENTION 

aliter ref erre in Deum, non cadit sub praecepto ; sed virtu- 
aliter ref erre omnia in Deum cadit sub praecepto caritatis, 
cum hoc nihil aliud sit quam habere Deum ultimum finem. 

It is then necessary and sufficient^ according to St. 
Thomas, to refer all our actions to God virtually. 
What he means by virtuaily is clear enough from the 
passages just quoted, but he explains his meaning 
more fully and more clearly in other places, especially 
in his commentary on the Second Book of the Sen- 
tences, Dist xl., q. 1, a. 5, There we read the follow- 
ing passages : 

Ad sextum dicendum, quod non sufficit omnino habitualis 
ordinatio actus in Deum: quia ex hoc quod est in habitu 
nullus meretur, sed ex hoc quod actu operatur. Nee tamen 
oportet quod intentio- actualis ordinans in finem ultimum 
sit semper eonjuncta cuilibet actioni quae dirigitur in 
aliquem finem proximum ; sed sufficit quod aliquando actu- 
aliter omnes illi fines in finem ultimum referantur; sicut 
fit quando aliquis cogitat se totum ad Dei dilectionem 
dirigere : tunc enim quidquid ad seipsum ordinat, in Deum 
ordinatum erit. Et si quseratur quando oporteat actum 
referre in finem ultimum hoc nihil aliud est quam quaerere 
quando oportet habitum caritatis exire in actum, quia 
quandocumque habitus caritatis in actum exit, fit ordinatio 
totius hominis in finem ultimum, et per consequens omnium 
eorum quae in ipsum ordinantur ut bona sibi. 

Ad tertium dicendum, quod non solum actus caritatis est 
meritorius, sed etiam actus aliarum virtutum, secundum 
quod gratia informantur; licet meritorii esse non possint, 
nisi secundum quod reducuntur in finem caritatis. Non 
autem oportet quod semper actus in finem ilium redu- 
cantur; sed sufficit ad efficaciam merendi quod in fines 
aliarum virtutum actu reducantur; qui enim intendit casti- 
tatem servare, etiamsi nihil de caritate cogitet, constat 
quod meretur, si gratiam habet. Omnis autem actus in 



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BOMB QUESTIONS CONCERNING INTENTION 293 

aliqnod bonum tendens, nisi inordinate in illud tendat, 
habet pro fine bonum alicujus virtutis, eo quod virtutes 
sufficienter perfieiunt circa omnia quae possunt esse bona 
bominis. 

It is clear, then, that St. Thomas teaches that it is 
of obligation to refer all our actions to God, our last 
end. However, this obligation is sufficiently fulfilled 
bj one who acts from any motive that is not bad; for 
in thus acting he intends something which he sees to 
be good, as every human act is either good or bad, ac- 
cording to St Thomas. But in directing his inten- 
tion to something that is good, he is necessarily, 
though only virtually, not actually, directing his in- 
tention to God, his laat end; for the very notion of 
moral goodness implies conformity to man's last end. 

St Thomas further teaches that in him who is in 
the grace of God, in him who fulfils all the obligations 
which bind him under pain of grave sin, every act that 
is ethically good is also meritorious of life eternal. 
For among our other obligations there is the positive 
precept of charity, by which we are bound at times to 
think of (Jod, and elicit an act of love towards Him. 
By this act of charity we have referred ourselves and 
all our actions to God, and so unless it be recalled 
by one that is contrary to it, or by mortal sin, which 
destroys the bond of friendship between God and the 
soul, it continues to exert its influence on our subse- 
quent actions, and informs them with the spirit of 
charity. It thus makes them supernatural and mer- 
itorious of a crown of glory in heaven. 

The precept of charity obliges us to love God with 
all our heart, mind, and strength, but our condition 



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294 80MB QUESTIONS OONCERNINQ INTENTION 

here on earth does not permit as to be always aigaged 
in actually thinking of God and forming acts of love 
towards Him. The limitations of our nature and the 
necessities of life, as a rule, only permit us to observe 
this greatest of all commandments by never doing 
anything directly contrary to it^ and by fulfilling it 
virtually, that is, by virtually directing our every ac- 
tion towards Qod in the sense explained by St. 
Thomas. However we are bound at all events occa- 
sionally to think of Qod explicitly, and to give Him 
the service of our explicit love and affection. This 
St. Thomas teaches, as we have already seen, and it 
is certain doctrine, approved and enforced by the 
Church. Nevertheless, it seems impossible to say 
when and how often we are bound under pain of sin 
to form explicit acts of the love of Qod. St Thomas • 
teaches that at least when a man begins to have the 
use of reason he then begins to think about his last 
end, and that he is then bound under pain of mortal 
sin to refer his whole being and all his actions to Ood. 
If he do this, he thereby obtains the sanctifying grace 
of Ood if he was still in original sin ; if he fail to do 
it he commits his first sin, so that one who is still in 
original sin cannot commit venial sin before he has 
committed mortal sin. 

Although this opinion of St. Thomas has always 
had its supporters, especially among his followers, yet 
it does not seem ever to have won the common assent 
of theologians. The opinion seems not sufficiently 
grounded in revelation, reason, or experience. At 
some time, indeed, after coming to the use of reason, 

> Sum, I.-n., q. 89, a. 6. 



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BOMB QUESTIONS OONOEBNING INTENTION 296 

and after learning his obligations towards Ood^ his 
Creator and Lord, every man is bound to give himself 
to the service of God by an act of love; but other 
theologians think that the particular time when this 
obligation must be fulfilled under pain of grave sin 
cannot be so exactly determined as St Thomas lays 
down. All are agreed that we must frequently dur- 
ing our lives form explicit acts of the love of Gtod, but 
it seems impossible to determine more accurately at 
what intervals this obligation must be fulfilled under . 
pain of sin. 

Intimately connected with the obligation of refer- 
ring our actions to our last end is the question con- 
cerning the influence of our intention on the moral 
quality of our actions. Some early Christian writers 
misled by a false interpretation of the words of Our 
Lord in the Sermon on the Mount, taught that the in- 
tention with which we perform our actions is every- 
thingy the actions themselves are of no moral quality. 
Thus the unknown author of the Ojms imperfectiim 
on St Matthew, generally published with the works 
of St Chrysostom, says: 

Ergo servus Dei non potest facere malum; et si videtur 
tibi aliquando quod male fecit, considera caute ipsum 
malum ejus, et invenies eum ab intus esse bonum. Nam 
ex proposito bono, etiam quod videtur malum, bonum est, 
quia propositum bonum malum opus excusat ; malum autem 
opus bonum propositum non condemnat.^ 

Cassian, too, in his Collationes writes: 

Non enim Deus verborum tantum actuumque nostrorum 
discusBor et judex, sed etiam propositi ac destinationis in- 
«H(Mn. xlx. 



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296 BOMB QVB8TI0N8 CONOBRNING INTENTION 

gpector est. Qui si aliquid causa salutis aetemae ac 
divinae contemplationis intuitu ab unoquoque vel factum 
yiderit vel promissum, tametsi hominibus durum atque 
iniquum esse yideatur, ille tamen intimam cordis inspiciens 
pietatem, non verborum sonum, sed votum dijudicat volun- 
tatis, quia finis operis et affectus considerandus est perpe- 
trantis, quo potuerunt quidam, ut supra dictum est, etiam 
per mendacium justificari, et alii per veritatis assertionem, 
peccatum perpetuae mortis incurrere.** 

Peter Lombard had perhaps these and other au- 
thors in mind when he wrote in the Second Book of 
the Sentences: 

Sed quaeritur, utrum omnia opera hominis ex effectu et 
fine sint bona vel mala. Quibusdam ita videtur esse, qui 
dicunt, omnes actus esse indifferentes, ut nee boni nee mali 
per se sint ; sed ex intentione bona bonus, et ex mala malus 
flit omnis actus/ 

As it is clear from these extracts, the doctrine that 
the end justifies the means had its supporters in very 
early times among Christian writers; it was indig- 
nantly and triumphantly refuted by the great St. 
Augustine, whom St. Thomas and orthodox teachers 
in the Church have always followed on this point 

In order to have a clear notion of what influence the 
intention has on the morality of an action, it may be 
worth while briefly to summarize St. Thomas's doc- 
trine on the point. 

He flrst of all examines the human act in its total- 
ity,^ and teaches that it derives its moral quality 
from the object, the end, and the circumstances. The 
object is that about which the human faculty is en- 

• OoUat xvli., c. 17. « Dist. xl. t Sum, I.-II., q. la 



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BOMB QUESTIONS CONCERNINa INTENTION 297 

gaged when the action is produced, op it is that which 
the faculty produces or does ; it is the substance of the 
action considered in the abstract, and apart from its 
circumstances. Thus, in the act of theft, the object 
is the taking away of something which belongs to an- 
other, and if this be considered in relation to right 
reason, it is obvious that it is an act which is con- 
trary to it; or theft is morally wrong because the ob- 
ject of the action is against right reason, which is the 
rule of human actions. 

The end, on which the morality of an action also 
depends, is the motive of the action, the reason why it 
is done. It is obvious from what has been said above 
that the moral quality of an act depends on its motive 
or on the intention with which it is done; it is bad 
to steal, it is worse to steal in order to be able to 
commit adultery, according to the well-worn illustra- 
tion. 

Finally, the circumstances which accompany an ac- 
tion give it its moral quality, as well as the object 
and the end. It is wrong to steal, but to steal the 
Church plate, or the pittance on which a poor man 
depends for the support of himself and his family is 
worse. To play in the field at the proper time is 
right, to play in church is wrong. After laying down 
these principles about the morality of .human acts in 
general, St. Thomas considers in detail the morality 
of the two chief component parts of a complete and 
consummated act, the interior act of the will and the 
exterior act. When a theft is committed, the thief 
first of all determines to commit the crime, and then 
sets about its execution. The crime morally consid- 



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298 SOME QUESTIONS CONCERKTNG INTENTIOy 

ered is one completed human action, but physically 
it is composed of many, both interior and exterior 
acts. The will determines upon the theft, and then 
sets the external faculties in action to accomplish it 
We are chiefly concerned with the interior act of the 
will. 

The will is set in motion by some object or end 
which it wishes to attain. Thus one may come to 
know of a case of distress, and natural good feeling 
prompts the desire to relieve it. The relieving of dis- 
tress in the case is the object towards which the will 
tends, and which causes the will to form the intention 
of giving relief. This object, therefore, is the cause 
of the action of the will, it is the term from which the 
action starts, and it is the goal towards which the ac- 
tion is directed. And as all motion is specified by the 
term to which it is directed, so the motion of the will, 
which we call intention, receives its moral quality 
from the object or aim to which it tends. So the in- 
tention to relieve distress is an act of virtue, and an 
intention to do an injury is vicious. In other words, 
the morality of the intention depends upon the object 
or end in view. 

When the will has formed the intention of relieving 
the case of distress, the next step is to discover the 
means. If the means are not at hand, it is necessary 
to work to obtain them, the work undertaken for so 
charitable a purpose will be colored by the object for 
which it is undertaken, and itself become an act of 
charity. The means are desired for the sake of the 
end, they become the object of the will because of 
their connection with the end, they therefore put on 



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BOMS QUESTIONS CONCERNING INTENTION 299 

the moral quality of the end. In the same way, if the 
end be bad, means, though good in themselves, taken 
with a view to attain such an end, become corrupted 
and bad. And so to work in order to obtain money 
to indulge in debauchery is itself wrong and wicked. 
And here we touch upon the celebrated question 
whether a good end justifies wrongful means. In the 
sphere of politics there is too much reason to suppose 
that the view that the end does justify the means is 
largely acted upon by statesmen of all parties and 
nationalities. Machiavelli, who has given his name 
to the theory, lays down the principle with the utmost 
candor : 

A prince, therefore, is not obliged to have all the fore- 
mentioned good qualities in reality, but it is necessary he 
have them in appearance ; nay, I will be bold to affirm, that 
having them actually, and employing them upon all occa- 
sions, they are extremely prejudicial, whereas having them 
only in appearance, they turn to better account; it is 
honorable to seem mild, and merciful, and cour^us, and 
religious, and sincere, and indeed to be so, provided your 
mind be so rectified and prepared that you can act quite 
contrary upon occasion. And this must be premised, that 
a prince, especially if he come but lately to the throne, 
cannot observe all those things exactly which make men 
be esteemed virtuous, being oftentimes necessitated for the 
preservation of his State to do things inhumane, unchari- 
table, and irreligious; and therefore it is convenient his 
mind be at his command, and fiexible to all the puffs and 
variations of his fortune : Not forbearing to be good, whilst 
it is in his choice, but knowing how to be evil when there 
is a necessity. . . . Let a prince therefore do what he can 
to preserve his life, and continue his supremacy, the means 
which he uses shall be thought honorable, and be corn- 



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300 80MB QUESTIONS CONOERNiyQ INTENTION 

mended by everybody, because the people are always taken 
with the appearance, and event of things, and the greatest 
part of the world consists of the people : those few who are 
wise, taking place when the multitude has nothing else to 
rely upon.® 

More briefly, but perhaps still more to the point, 
he says in his Discourses on lAvjf: 

And this ought to be considered and observed by every 
man whose office it is to advise for the good of his country ; 
for where the safety of that is in question no other consid- 
eration ought to be coincident, as whether the way be just 
or unjust, merciful or cruel, honorable or dishonorable, 
but postponing all other respects, you are to do that which 
shall procure the safety of your country, and preservation 
of its liberty.* 

It is by no means an uncommon thing to meet with 
an almost equally explicit approval of the doctrine 
that the end justifies the means in the daily press and 
in modem periodical literature. Such approvals are 
specially frequent in more or less appreciative ac- 
counts of the careers of such men as Bismarck and 
Rhodes. But Machiavellianism is not confined to 
politicians, nor of course did unscrupulousness first 
appear in the days of the crafty Florentine. As we 
have already seen there are traces of the doctrine that 
the end justifies the means in several writers of the 
early ages of the Church. 

However, with a few obscure exceptions, theolo- 
gians have constantly rejected the view. They point 
out with St. Thomas that an action is not morally 
good merely because the end or intention is good ; it 

8 The Prince, c. 18. » Book III., c. 41. 



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SOME QUESTIONS CONCERNING INTENTION 301 

must be good in all particulars; Bonum ew integra 
causa, malum ex quocumque defectu, was the axiom 
applied in the case. And so if a man steals in order 
to relieve a case of distress, he does wrong though his 
intention be never so praiseworthy. It is wrong to 
steal, and it remains wrong though the theft be com- 
mitted with a good intention, and the otherwise good 
action of relieving distress is vitiated by the wrongful 
means employed to do it, for the will to relieve dis- 
tress by robbery is a vicious will. As the Society of 
Jesus is constantly being attacked on this point, it 
may not be out of place to quote the words in which 
Vasquez, one of its greatest divines, sums up the doc- 
trine which it has always taught : 

Ad testimonia auctoris imperf ectl in Matihaeum et Cas- 
siani, dicimus, hos Patres excusari non posse ab errore in 
quem ignoratione lapsi sunt; existimarunt enim opus 
alioquin natura sua malum reddi posse bonum ex bono fine ; 
intelligere autem videntur, etiamsi ex bono fine non 
mutetur natura object!, et aliarum circumstantiarum, ex 
quibus malitia alias oriretur: et hac ratione defendit Gas- 
sianus licitum esse mentiri ob aliquem honestum finem, et 
necessitatem : quam sententiam late impugnat Augustinus 
in lib. contra mendacium ad Consentium, praesertim cap. 
7, ubi etiam haereticam appellat. Multa etiam eongerit 
contra illam Qratianus 22 q 2, estque manifeste contra 
Paulum ad Bomanos 3, ubi damnat eos, qui dicebant, facia- 
mus mala, ut veniant bona, quorum damnationem dicit esse 
justam. Recte igitur docet Augustinus omnia opera, quae 
constat esse peccata, bene fieri non posse, etiamsi fiant ex 
recta alias intentione, alia vero opera, quae ex se peccata 
non sunt, recta effici ex recta intentione.^® 

10 In I.-II. 8. Tbomse, Dlsp. 68, c 2. 



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302 SOME QUESTIONS OONOBBNING INTENTION 

Although a good intention cannot make a bad ac- 
tion goody yet it may Bometimes so change the circum- 
stances that the action is no longer forbidden. Thus, 
to take away a pistol from a would-be homicide in 
order to prevent him from committing a crime is a 
good action, while it would not be justifiable without 
good intention. Some authors, with Vasquez, on the 
same grounds defend the opinion that one may law- 
fully intend to kill an unjust assailant of life or limb 
in self-defense. All admit that it is lawful to kill the 
assailant in such a case, if this be necessary for self • 
defense; many theologians, however, with St. Thomas, 
teach that the object of the intention should be self- 
defense, and not the killing of one's adversary. For 
directly to take away human life, even the life of a 
criminal, is only lawful when done by public author- 
ity; it is never permitted, they say, to private individ- 
uals. It is, however, lawful to defend oneself, and if 
in doing this the aggressor is slain, his death must 
be imputed to him, it was not directly intended. The 
point is somewhat fine, and perhaps not very prac- 
tical, but certainly this view seems to be more in. har- 
mony with principles admitted by all theologians. 

Another point much controverted among theolo- 
gians is whether the intention can make an external 
act formally unjust, which without the intention 
would not be so. Thus theologians discuss the ques- 
tion whether a thief would be bound to compensate 
another who was accused of the theft committed by 
him, when the thief foresaw and intended that the 
other should be accused of the crime. All agree that 
he would be so bound, if in any way he procured the 



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80MB QUB8TI0N8 CONCBBNINQ INTENTION 303 

accosatioii of the other. The qnestion concerns the 
case in which he did nothing to cause the imputation 
except to commit the crime. Similarly^ would a man 
m faro oonsoientiae and before being condemned to 
do so by lawful authority, be obliged to make repiara- 
tion to a neighbor who had been injured by falling 
into a man-trap, set in a retired corner where no one 
was likely to go, but with the intention that any one 
who did go there should be caught? Here it is con- 
ceded that there would be no obligation of making 
restitution for the injury done, if it had not been in- 
tended; the question is whether the intention changes 
the case, and imposes the obligation. 

It must be admitted that the intention to do harm 
to another is sinful, and that it is an internal sin 
against justice. For a desire or intention of doing 
evil is of the same species as the external act intended. 
But the obligation of making restitution does not 
arise from a merely internal act of injustice, it is cre- 
ated only by loss being e£FectiTely caused by the un- 
just action of another. That unjust action must hare 
of itself the efiFect of causing harm; the harm must 
follow from it as from its efficient cause, not as from 
a mere occasion, otherwise there will be no obliga- 
tion of making restitution. But the intention cannot 
give efficacy to an external act which it has not of 
itself. I may intend ever so much to do something, 
but unless I take effectiye means, the thing will never 
be done. The intention cannot change the objectiye 
nature of the means employed, and so it cannot make 
that an effectiye cause of injustice, which is not an 
effectiye cause without the intention. And so in both 



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304 SOME QUESTIONS CONCERNING INTENTION 

of the examples above, the answer should be in the 
negative. 

Closely connected with this is another question as 
to whether he is bound to restitution who, in intend- 
ing to do harm to one, through mists&e does harm to 
another. 

Although great names can be quoted for the opin- 
ion that there is no obligation of making restitution 
in such a case on the ground that no formal injury 
was caused to the person who suffered loss, that the 
injustice as regards him was involuntary; still, it 
would seem that this opinion is wrong; the intention 
does not change the nature of the external act That 
act, as a matter of fact, causes harm ; the agent has no 
right to put it; he foresees the harm that will be done ; 
he is therefore bound in justice to abstain from the 
action, and if he does not do so, he is bound to repair 
the harm he has wilfully caused. The fact that he 
intended the injury for another does not weaken the 
effectiveness of his action, it does not cause it to be 
harmless, it does not then release him from the obli- 
gation of repairing the loss caused; it was sufficient 
to impose the burden of making restitution if the 
harm was foreseen. In such circumstances the in- 
jury is formal, although not intended as against this 
particular person ; for whenever a man's property is 
knowingly and unjustly destroyed, a formal injury is 
committed against him although the injury was in- 
tended for another. The thief rarely has any direct 
intention of injuring the man whose goods he steals; 
if he could only get the goods without injuring their 
owner he would in general be perfectly satisfied; he 



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SOME QUESTIONS CONCERNING INTENTION 305 

is very sorry for the inconvenience he causes^ he does 
not desire it, but few would agree that these disposi- 
tions prevent the injury which he does the owner by 
taking his goods from being formal injustice. 



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XVII 

DR. McDONALD^S " PRINCIPLES OP MORAL 
SCIENCE " 

This book deserves a welcome as an honest attempt 
to grapple with the difficulties of moral science. How 
great those difficulties are is generally recognized, 
and by none more fully and freely than by those who 
have tried to overcome them. Modern theories in his- 
tory and science have directed renewed attention to 
the fundamental problems of ethics, and it is fitting 
that readers who are interested in the subject should 
be able to study the Catholic answer to those prob- 
lems in the mother tongue. Students of theology, 
too, will benefit by being able to consult an English 
author, who goes over the ground rendered so familiar 
to them by our Latin text-books. There are many 
such works published in other modern languages, but 
as yet the English language is singularly deficient in 
them. 

These, however, were not the reasons that induced 
Dr. McDonald to publish his essay. He tells us in his 
preface that while it is his main object to explain and 
defend the traditional system of morals which has 
been taught for centuries in the Catholic schools, yet 
he claims to have arrived at some important conclu- 
sions which are not to be found elsewhere. " If it 

306 



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•'PRINCIPLES OF MORAL SOIBNCW 307 

were otherwise/' he says, " I should not have thought 
of writing or publishing.*^ 

In the course of teaching moral theology, he noticed 
a considerable difference between the general prin- 
ciples formulated in the treatises on Human Acts, 
Laws, and Conscience, and the special conclusions ar- 
rived at afterwards when treating of the particular 
virtues. These special conclusions he regards as the 
true rules of moral conduct, and as furnishing the 
material for that wider synthesis which forms the 
substance of the earlier and fundamental treatises. 
Hence these special conclusions should furnish a test 
for the validity and accuracy of the general principles 
laid down in the treatises on Human Acts, Law, and 
Conscience. 

I quite agree. A general principle of morals which 
breaks down when applied to particular cases does 
not deserve to rank as a principle. It ms&es a pre- 
tense of being a rule of conduct, while in practice it 
furnishes no guide to conduct at all. If, then, the 
contention be true, that some of the general princi- 
ples of the fundamental treatises of moral theology 
as found in our text-books do not harmonize with the 
doctrine on special virtues, all moralists will wel- 
come the demonstration of its truth, and will be 
thankful for an accurate and plain statement of the 
general principles which should be substituted in 
place of the old. 

No theologian would pretend that the common doc- 
trine found in our text-books on the fundamental 
treatises of moral theology has reached its final, 
definitive, and perfect stage. Progress is still possi- 



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308 '* PRINCIPLES OF MORAL SCIENCE" 

ble, and no doubt progress will be made in the method 
of presenting the doctrine, in the enunciation and or- 
dering of the principles, and in other ways. And if 
we are to advance, some one must attempt the task, 
some one must act as pioneer of the way. This is 
another reason why this book deserves a welcome. 
But if the advance is to be on secure lines, it is no 
less necessary that the critic should be on the look 
out, and should perform his task honestly and fear- 
lessly. 

This is what I propose to do in this article. For 
the great bulk of the book, inasmuch as it presents in 
a good English dress the common doctrine of the 
Catholic schools, I have nothing but praise and a sin- 
cere welcome to oflfer. It is with two or three of those 
special conclusions at which Dr. McDonald has ar- 
rived, and which he says are not to be found else- 
where, that I propose to deal. I may say frankly at 
the outset that I do not agree with them; and so I 
find my place among those many students of morals, 
who, as he tells us in his Preface, the author foresaw 
would question and deny the success of his attempt in 
the direction of novelty. 

In the remarks which I have to make I shall strive 
to be as impersonal as possible; I shall look at the 
doctrines criticized from the purely objective point 
of view, and I am sure Dr. McDonald will not resent 
the friendly and honest criticism of a fellow-worker 
in a field of knowledge, as difficult aa it is inter- 
esting. 

A good practical test of the morality of an action 
is the effect which it produces. Adultery, theft, self- 



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** PRINCIPLES OF MORAL SCIENCE** 309 

ishnesSy are seen to be morally wrong because of the 
evil consequences which they produce. What, how- 
ever, is to be said of the moral quality of an action 
which produces both good and bad effects? The ad- 
ministration of chloroform renders the subject insen- 
sible to pain, but it also deprives him of the use of 
reason for the time being; craniotomy preserves the 
mother but it kills the child. How are we to judge 
of the morality of such actions as these which pro- 
duce effects of opposite moral quality? Dr. McDon- 
ald discusses and rejects the test which is commonly 
given in our text-books of moral theology. He trans- 
lates the principle as formulated by Father Lehmkuhl 
thus : — 

It is lawful to perform an action which produces two 
effects, one good, the other bad, — ^provided (1) the action, 
viewed in itself is good or at least indifferent; (2) the 
agent does not intend the evil effect, but only the good 
(it is well to add in some cases: and provided there is no 
danger of subsequent evil consent or intention) ; (3) the 
good effect is produced as immediately as — ^that is, not by 
means of — ^the bad ; (4) and there is a sufficiently weighty 
reason for permitting the evil effect. (Page 149.) 

He then proceeds to criticize the principle in this 
manner : — 

There is not one of these four conditions that does not 
present difficulties to my mind. Let us take them in 
order: — 

(1) '*The action'* — ^that is, as I understand it, the ex- 
ternal action — ^** viewed in itself, must be good or at least 
indifferent." But is not the whole question at issue this: 
how is one to know whether this action is good in itself, 
when its effects are good as well as evU T You tell me that 



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310 - PRINCIPLES OF MORAL 80IBN0B " 

it is to be considered lawful — ^which is the same as good — 
ify among other things, it is good in itself ; and I do not see 
how this makes me a whit the wiaer. (Page 149.) 

Dr. McDonald misunderstands the principle which 
he impugns. The whole question at issue is, of course, 
the morality of the action which produces both good 
and bad effects. We wish to know whether the ad- 
ministration of chloroform, for instance, is a good 
action; whether craniotomy is lawful; whether, to 
take a third example given by Dr. McDonald, it is 
lawful to walk to the fields in sununer time for the 
sake of exercise and relaxation, in spite of the fact 
that at each step we crush the life out of many lowly 
forms of sentient being. The principle tells us that 
such actions will be morally good if certain condi- 
tions are verified. The first is that the action viewed 
in itself, that is, apart from its effects, must not be 
bad. This is not the whole question at issue, as Dr. 
McDonald asserts that it is ; the question at issue is, 
whether the action remains good, even though it pro- 
duce an evil effect We can examine the morality 
of the action apart from its evil effect, and tiiis is what 
the principle tells us to do. Thus, in the last instance 
quoted from Dr. McDonald, it is possible to walk in 
the fields without destroying sentient life at all, or at 
least we may conceive of its being done; the question 
is, whether it remains a lawful action in summer time, 
when it cannot ordinarily be done without destroying 
animal or insect life. The action of walking in the 
fields, even in summer time, is ethically good, or at 
least indifferent, viewed in itself, apart from conse- 
quences, and thus it satisfies the first condition laid 



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"" PRINCIPLES OF MORAL SOIEyOE'* 311 

down in the principle. This is a distinct step towards 
the solution of the question concerning the morality 
of walking in the fields in summer time; when we 
have got thus f ar^ we are something more than a whit 
the wiser. For, if the question were whether I may 
tell a lie to save another's life, or in other words, 
whether a lie is lawful when it produces a good effect 
in spite of its also producing a bad one, the question 
would at once be settled in the negatiye by the applica- 
tion of our principle; the first condition would not be 
satisfied, because to lie is bad in itself. 
Dr. McDonald proceeds : — 

(2) ''The agent must not intend the evil effect, but only 
the good." But, according to the doctrine laid down in 
the last chapter, the question of intention or subsequent 
consent does not arise. We want to test whether a certain 
external action, regarded in itself, is morally good or bad ; 
and I think I have shown that external acts, as such, do 
not depend for their morality on any concomitant or sub- 
sequent act of the will (Page 149.) 

Dr. McDonald misunderstands the second condition 
as seriously as he misunderstood the first. We are 
not concerned here with the mere external action re- 
garded in itself. We want to know whether it is law- 
ful to walk in the fields in summer time. The action 
is regarded as a complete human act, therefore as a 
voluntary act, as one issuing from free will, therefore 
as necessarily informed by a certain intention, an in- 
tention which may be good or bad. To walk in the 
fields in order wantonly to destroy sentient life is a 
bad action, because informed by a vicious intention ; 
to walk in the fields for recreation, or to till them, is 



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312 ** PRINCIPLES OF MORAL SCIENCE" 

good. With a view to settling whether in a concrete 
case walking in the fields is a good and lawful action^ 
the principle lays down the condition that the inten- 
tion must not be bad. This has nothing to do with 
the disputed question whether the intention can 
change the nature of the external act 

The third condition is : " The good effect must be 
produced as immediately as — that is — not by means 
of the bad.^' 

Criticizing this condition Dr. McDonald asks : *^ Is 
this universally true? *' I answer^ Yes, if in the cir- 
cumstances the evil effect remains evil, for we must 
not do evil that good may come of it. To amputate 
a diseased leg in order to save life is not evil, and so 
the example does not show that the condition laid 
down is false, though the Doctor seems to think that 
it does. And though he here implies that when 
chloroform is administered, the good effect is ob- 
tained through the evil, he does not prove it ; and even 
if that were proved, he would still have to show that 
to produce unconsciousness by administering chloro- 
form when there is good reason for it, is evil. Dr. 
McDonald refers us to another work of his for a 
criticism of the terminology of the fourth condition, 
and then briefly subjoins : 

The "weighty reason" required is the good effect which 
must also be produced by the action. . . . Now it is not 
much addition to one's sum of knowledge to be told that 
an action is wrong which does not produce any but an evil 
effect; nor does it help much to be informed further that 
the good effect produced must bear some proportion to the 
evil. (Page 150.) 



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*' PRINCIPLES OF MORAL SCIENCE" 313 

I shall have something to say to this fnrther on. 

After his polemic against the principle of a double 
effect, Dr. McDonald inquires whether the distinction 
between direct and indirect causality may not serve 
as a basis for the test which ought really to be ap- 
plied in all cases of mixed results. He rejects this 
suggestion, but in his discussion on this point he 
falsifies the meaning of the distinction as commonly 
used by theologians, and confounds it with the 
distinction between per se and per accidens. When 
theologians treat of the lawfulness of direct and indi- 
rect killing, the distinction does not merely refer to the 
direct or indirect causality of the external act; it has 
special reference to the intention.^ Dr. McDonald, 
indeed, rules the question of intention out of court, 
but such is not the practice of moral theologians when 
they discuss the questions with which the Doctor is 
here occupied, and inasmuch as those questions are 
concerned with human acts, acts necessarily informed 
by some intention, not with the merely physical ex- 
ternal acts of the body, as he seems to suppose, it is 
difBkcult to see the reason for abstracting from the 
intention. 

Finally, the Doctor proposes a principle of his own 
in substitution for the principle of a double effect. 
He states it thus : — 

1 " Directe id dlcltur intend! in qua vis actione, qnod primario et 
ratione sui intenditur. Correlativum habet indirecte, quod dlcitur 
de illo, quod tantum ratione alterius intenditur et quasi per ac- 
cidens, ... In moralibus directe intendit homicidium, qui iUnd 
mandat ; indirecte, qui illius aliquam causam ponit, ut ebrietatem, 
ex qua illnd sequator." — LewUxm Soholaaticorum Verborum. 



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314 ** PRINCIPLES OF MORAL SCIENCE** 

An external action is to be considered morally good, 
even though it should produce a bad as well as a good 
eflfect, provided (1) it does not subordinate a being which 
by nature is not to be subordinated; and (2) the good 
effect produced is sufficient to compensate for the bad. 
(Page 158.) 

The chief reason why Dr. McDonald wrote his book 
was, it will be remembered, to remedy a defect in 
other authors. As he says, just before the statement 
of his new principle : — 

I am convinced that when they come to practical work 
our theologians retain their sound common sense and forget 
or neglect the general principle which they were at such 
pains to establish at an earlier period, when treating of 
what I may call the metaphysics of moral science. (Page 
157.) 

Unless I am very much mistaken this procedure 
will be necessary in the case of Dr. McDonald's own 
principle. In fact, he himself virtually acknowledges 
as much. On two conditions, he says, an external 
action will be morally good, even though it produces 
a bad slr well as a good effect; first, it must not sub- 
ordinate a being which by nature is not to be sub- 
ordinated. But which are those beings which by na- 
ture are not to be subordinated? Unless this is 
known, it will not be possible to apply the general 
principle. It will only be a general rule of conduct 
in so far slb it enables us to decide the morality of 
particular caaes. However, Dr. McDonald confesses 
that there is no general rule that can be given. 

It is reasonable to ask [he says] how one is to decide 
whether and how far any being is by nature subservient 



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** PRINCIPLES OF MORAL SCIENCE*' 315 

to another. I know of no general role that may be ap- 
plied; one has to go through the different essences in 
nature, examine their circumstances, compare them, and 
then decide whether and how far they are independent or 
subservient. (Page 163.) 

To go through the different essences in nature, ex- 
amine their circumstances, and compare them, is the 
work of a theologian, and not an easy task even for 
him ; so that there will be no slight difficulty in dis- 
covering whether the first condition is verified in a 
particular case. 

The second condition is, that the good effect pro- 
duced should be sufficient to compensate for the bad. 
Now this seems identical with one of the conditions 
ordinarily required by theologians in the common 
statement of the principle of a double effect. " There 
must be a sufficiently weighty reason for permitting 
the evil effect,*^ says Father Lehmkuhl, quoted above. 
Dr. McDonald would seem to have forgotten his criti- 
cism of that condition in the former connection: 
" Nor does it help much,'^ he wrote, " to be informed 
that the good effect produced must bear some propor- 
tion to the evil '' (page 150) . If it did not help much 
there, I cannot see how it can help much here. Fur- 
thermore, he confesses that here also no general rule 
can be given for deciding whether the good effect is 
sufficient to compensate for the bad (page 165) . The 
circumstances must be balanced in particular cases, 
certain allowances have to be made; what those al- 
lowances are is a question which the writer on ethics 
has to face when he comes to treat of the separate 
virtues ; in doing this he must draw liberally on the 



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316 ** PRINCIPLES OF MORAL SCIENCE'* 

light supplied by other practical sciences. The Work, 
evidently, is not child's play; in any case the result 
will not help us much. 

I am afraid practical moralists will not And Dr. 
McDonald's principle of much use. It is aa difficult to 
decide whether the conditions laid down are verified, 
as to decide the moral quality of the external ac- 
tion. 

Moreover, unless I seriously misunderstand the 
Doctor's meaning, the principle is inadequately form- 
ulated. As laid down it would allow actions to be 
done which are certainly wrong. For example: I 
am in poverty, and I have the opportunity of reliev- 
ing my wants and those of my family by stealing £5 
from a wealthy neighbor. This action produces a 
good and a bad effect; it relieves my want, though to 
be sure it also deprives my neighbor of a sum which he 
will hardly miss. The action will be lawful, accord- 
ing to Dr. McDonald, on condition that it does not 
subordinate a being which by nature is not to 
be subordinated, and if the good effect is sufficient 
to compensate for the bad. Both these conditions 
would seem to be verified by my action. I subordinate 
money to human wants, as by nature it should be sub- 
ordinated; the good effect is out of all proportion to 
the bad. The money in my hands goes to feed my 
family, in the hands of its owner it would go to feed 
his dogs. 

I must confess I do not see why this is not a legiti- 
mate application of Dr. McDonald's principle; it is 
with the purpose of excluding such applications of 
the principle of a double effect that theologians re- 



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'* PRINCIPLES OF MORAL SCIENCE'' 317 

qnirey as a first condition^ that the action in itself 
shonld be good^ or at least indifferent; but Dr. Mc- 
Donald rejects that condition as involving the whole 
question at issue. 

Besides the principle of a double effect, Dr. McDon- 
ald adversely criticizes the common doctrine about 
penal laws. However, his chief objections to that 
doctrine are not new; they appear to me to have been 
abundantly answered by such classical writers on 
Law as Suarez and Laymann. Besides, I should very 
much doubt whether the Doctor's rather strict views 
on this point are at all general in the land of potheen. 
It will be more interesting to pass on to his criticism 
of the fundamental principle of Probabilism and 
Equiprobabilism alike, the principle that doubtful 
laws do not bind the conscience. 

This principle is capable of being understood in 
several ways. All theologians hold that doubtful 
laws bind in some sense. Thus, in a case of practical 
doubt as to the existence of a law I am bound to make 
due inquiry, and I am not at liberty to act until I 
can, directly or reflexly, form a certain conscience on 
the question. Dr. McDonald strives to show that 
there is no general law which obliges one in doubt to 
acquire certainty as to the rightness of his action be- 
fore he proceeds to act ( Page 199, sqq. ) But surely 
the law which forbids us to act with a doubtful con- 
science binds us to do this. Qtu)d non est ex fide 
peccatum est. If I doubt whether it be a day of ab- 
stinence or not, and eat meat without taking any pains 
to form a certain conscience, I commit a sin, and that 
whether it be a day of abstinence or not. For the 



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318 *' PRINCIPLES OF MORAL SCIBNCB** 

Tery fact of my eating meat in spite of my being 
doubtful whether it is not forbidden by the Church 
shows that I am prepared to break the law of the 
Church about abstinence, and this is a sinful disposi- 
tion, which is extemated by my eating meat, which 
act therefore is a sin, whether there be a prohibition 
to eat meat on that day or not. This explains why 
it is always a sin to eat meat with a doubtful con- 
science, even when the doubtful law does not exist. 
How would Dr. McDonald explain this on his as- 
sumption that doubtful laws bind directly and of 
their own force? A law which does not exist cannot 
bind. Dr. McDonald's argument, therefore, seems 
destitute of force. The fact that the sin committed 
by one who acts in doubt is of the same species as 
would be the sin committed against the doubtful law 
if it existed, does not show that a doubtful law binds 
the conscience; it only proves that there is a general 
law which prescribes that we must form a certain 
conscience before we act 

Moreover, a doubtful law may in a certain sense be 
said to bind after due inquiry has been made, and the 
doubt cannot be directly solved. If, after forming 
my conscience in this case I act against the law which 
really exists, I commit a material sin, but I am ex- 
cused from formal guilt. All theologians, I think, 
also admit this. The doubtful law is said in such 
cases to bind imperfectly, in nctu prima, not perfectly 
and in actu secundo. Dr. McDonald hardly seems to 
admit the validity of this distinction as applied to the 
obligation of law, and almost violently attacks the de- 
fenders of probabilism, who use it in the exposition 



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•*PBIN0IPLB8 OF MORAL 80IBN0B*' 319 

of their system. His remarks, however, show that he 
has misunderstood its history and meaning. 

I do not know [he writes] when or hy whom this dis- 
tinction between first and second act was introduced into 
treatises on the binding force of laws. St. Alphonsos took 
it, apparently, from Cardinal Ootti; and the curious in 
such matters may inquire whether the learned Cardinal is 
responsible for first transferring the terms in question 
from the treatises on actuality and activity, where they 
were found originally and where they serve some purpose, 
to treatises on law and its obligation, where they are almost 
without meaning. (Page 206.) 

But surely treatises on law and its oMigation are 
treatises on actuality and activity. This appeared so 
evident to Suarez that he took it for granted at the 
beginning of his great treatise on Laws.^ 

There can be no objection, then, to using the dis- 
tinction, in actu prima and m aotu seowndo, of the 
different phases in which we may consider the obli- 
gation of laws. Such classical authors as Suarez 
and Sylvius used it in this sense long before Gotti 
wrote. The very term obligation is derived from 
physical activity, as St Thomas explains in a cele- 
brated passage: — 

Ita se habet imperium alicujus gubemantis ad ligandum 
in rebus voluntariis illo mode ligationis qui voluntati acci- 
dere potest, sicut se habet actio corporalis ad ligandum res 
ccHrporales necessitate coactionis. Actio autem corporalis 
agentis nunquam inducit necessitatem in rem aliam nisi 
per contactum coactionis ipsius ad rem in quam agit, unde 
nee ex imperio alicujus regis vel domini ligatur aliquis, nisi 
imperium attingat ipsum cui imperatur; attingit autem 

« Lib. I., c. Iv., n. a 



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320 *' PRINCIPLES OF MORAL SCIENCE'' 

ipsum per scientiam : Unde nullus ligatur per prseceptnm 
aliquod nisi mediante scientia illius prsecepti; et ideo ille 
qui non est capax notitise, prscepto non ligatur; nee aliquis 
ignorans prseceptum Dei, ligatur ad prseceptum faciendum, 
nisi quatenus tenetur scire prseceptum. Si autem non 
teneatur scire, nee sciat, nullo modo ex praecepto ligatur. 
Sicut autem in corporalibus agens corporale non agit nisi 
per contactum, ita in spiritualibus prseceptum non ligat 
nisi per scientiam.' 

It is difficulty then, to see what ground Dr. McDon- 
ald has for objecting to a distinction which is in ac- 
cord with the nature of things, and which has been 
consecrated by the usage of centuries in the schools. 
His subsequent remarks, however, show that he has 
seriously misunderstood the meaning in which the 
distinction is used. 

Now, when those theologians [he writes] who defend 
probabilism by calling in aid this distinction between first 
and second act, — ^when they say that a law which has been 
promulgated, indeed, but is not yet known for certain to 
a particular subject, binds only in first act, what do they 
meant What can they meant The first act of the law 
began to be, as we have seen, when the legislator's juris- 
diction began ; and all the laws which it is possible for him 
to make, even though he has and never had the least in- 
tention of making them, bind in first act by the very ex- 
istence of this power. That is the only philosophical 
meaning attaching to the term ** first act,*' — a power to 
operate, as distinguished from an operation. (Page 207.) 

There is a certain note of triumph about this, and 
it would be unfair to leave the reader to suppose that 
Dr. McDonald is unaware that the usage of theolo- 

« De Veritate, q. 17, a. a 



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** PRINCIPLES OF MORAL SCIENCE*" 321 

gians is against him. The facts are against him as 
well. We are here concerned not with the jurisdic- 
tion of the legislator, but with the obligation, binding 
force, activity, of the law. The jurisdiction of the 
law-giver is in first act while it remains in habitu; 
it comes into second act when it is used to make a 
law. The law just made but not yet in force is in 
first act; when it comes into operation, when it be- 
gins to bind, it is in second act. This may be illus- 
trated and at the same time proved by a brief quota- 
tion from Sylvius: — 

Controversia [utrum lex naturalis obliget omnes homines 
generaliter, etiam pueros et amentes] tolli posse videtur, 
dicendo quod ea lex omnes omnino aliqualiter obliget, scil. 
obligatione saltern imperfecta et in aetu prime: quamvis 
non omnes obliget obligatione perf ecta et in aetu secundo.^ 

We have learned from St. Thomas, quoted above, 
that a law binds perfectly and fully only through the 
knowledge of the subject. A law is a rule framed to 
direct the actions of rational beings, who are guided 
by reason and will; in order then to guide them the 
rule must be known. A law is also a rule given to a 
community of men, not to an individual, so that in or- 
der to bind, it must be authoritatively brought to the 
knowledge of the community as such, or in other 
words, it must be promulgated. Leges tunc insti- 
tuuntur cum promulgcmtur. Laws then do not exist 
in their full and perfect being until they are by pro- 
mulgation brought to the certain knowledge of the 
community. This is the teaching of St. Thomas, and, 

4 In I&m iiae q. 94, a. 4. 



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322 ** PRINCIPLES OF MORAL SCIENCE'* 

I think, of all theologians. Tet it is a truth which 
is sometimes ignored or forgotten by Dr. McDonald. 
Thus, on page 196, we read : — 

Moral theologiaDs argne as if a law could not exist ob- 
jectively whenever there is reasonable doubt as to this 
objective existence; either because, in that case, it could 
not have been sufficiently promulgated ; or because laws can 
bind only those who have knowledge of their existence. 
These arguments, however, are so feeble that I can hardly 
regard them as being intended to prove, — ^what, neverthe- 
less, is the only thing they could be conceived to prove, — 
that the existence of law, objectively considered, is affected 
by doubt in the mind of the subject. 

When moral theologians use these arguments to 
show that a doubtful law does not impose a perfect 
obligation, they are not dealing with a merely nega- 
tive doubt, nor with the merely subjective doubt of 
some particular individual; they mean a positive 
doubt resting on solid grounds, a doubt resting on an 
objectively probable opinion, which makes it ob- 
jectively doubtful whether the law has been promul- 
gated. For if it had been promulgated there could 
not be such ignorance of its existence among the com- 
munity. In such circumstances the law has not been 
sufficiently brought to the knowledge of the com- 
munity, and so it is wanting in one of its essential 
elements. This is what St. Alphonsus and other theo- 
logians mean when they say that a law which is not 
promulgated does not bind, or is no law ; and, that a 
doubtful law is not sufficiently promulgated. If Dr. 
McDonald had always borne this in mind, he would 
not have written such passages as the following: — 



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** PRINCIPLES OF MORAL SCIENCE'' 323 

Of themselves, therefore, doubts in the mind of those 
who are sabject to a law, prove absolutely nothing as 
against the existence of the law; and instead of laying 
down the principle, doubtful laws do not bind, we should 
say, It is doubtful whether laws bind in cases of doubt. 
A doubtful law binds or does not bind according to the 
truth or falsehood of either of the opinions about its ex- 
istence or its meaning. (Page 197.) 

Nor is it a question of subjective responsibility or 
freedom therefrom, as the Doctor seems to suppose : — 

The question of responsibility is thus raised: when and 
why is one responsible for an act which is out of order 
materially? Is it necessary that one should be subjectively 
certain of the material deordination T Or may a man be 
held responsible even though he is merely in doubt sub- 
jectively? The advocates of probabilism commonly main- 
tain that there can be no responsibility as long as sub- 
jectively the agent merely doubts of the objective deordi- 
nation. Is this proved t Is it true? (Page 198.) 

Probabilists maintain that a probable opinion 
against a law does not merely affect individual re- 
sponsibility, it affects the objective binding force of 
the law. However, I never came across a probabilist 
who maintained what Dr. McDonald says they com- 
monly do maintain. This will be clear from what has 
been already said, and it is not necessary to comment 
on the three or four pages of argument with which 
the Doctor proves the falsity of a thesis which no prob- 
abilist, that I know of, would defend. 

In spite of his objections to the maxim : Doubtful 
laws do not bind — Dr. McDonald allows that some- 
times it is true. A doubtful law does not bind, he 
says, "whenever observance of such a law is the 



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324 "* PRINCIPLES OF MORAL SCIENCE'* 

greater of two or more evils or dangers of which one 
has to be faced or accepted.'^ (Page 205.) 

There is, of course, a well known principle of moral 
theology which prescribes that in case of a perplexed 
conscience, when we must choose one of two evils, 
there is an obligation to choose the less. Dr. McDon- 
ald goes further than this and seems to propose the 
principle as the one universal solvent of all cases of 
doubtful conscience. He writes : — 

Doubtful laws are to be observed whenever the evil or 
the danger to be apprehended from not observing them, is 
considered greater than any that would result from ob- 
servance. This, accordingly, of all the principles yet pro- 
posed for the resolution of practical doubts, is the only one 
that a scientific moralist can harmonize with the other prin- 
ciples of his science. (Page 205.) 

Further on he gives us an -algebraic formula for the 
principle : — 

When once you have become convinced that in cases of 
doubt the golden rule is to follow the course which is ap- 
prehended as least dangerous, the next question to be con- 
sidered is, how quantities of danger are to be measured 
and compared so as to find out which is the least. It seems 
to me that they may be measured according to the following 
general rule: The quantity of the evil that is feared, 
multiplied by the probability that it will occur, — ^proba- 
bility being regarded as a fraction of the unit certainty, — 
is equal to the amount of danger in any given case. The 
formula may be stated algebraically thus : D = Zp ; where 
D means the danger, I the loss or evil, and p the proba- 
bility that this loss will be incurred. (Page 210.) 

It seems to me that there is no probability that this 
golden rule will be adopted by moralists for other 



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- PRINCIPLES OF MORAJj SCIENCE " 325 

cases of doubt than those so-called cases of perplexity, 
in which there is no choice but the less of two moral 
evils. In one class of cases it would be immoral to 
apply it I cannot do better than take an instance 
given by Dr. McDonald himself: — 

Take, for instance, the case of a trades-union rule which 
is probably inordinate. It is a serious loss to the artizans 
concerned if the rule should be in order objectively whilst 
they are not allowed to act on it; and it may also be a 
serious loss to employers if the men are allowed to act on 
a rule which, objectively, is a violation of employers' 
rights. In this case the dangers are capable of being com- 
pared, just as if the question in doubt were one merely 
of fact. (Page 213.) 

Let { be the loss to the artizans and p the proba- 
bility that it will occur, while V represents the loss to 
the employers and p' the probability that it will occur. 
Then by the formula, if 

the artizans may act on the trades-union rule, which 
is probably unjust. And so, according to this doc- 
trine, I may do something which is probably unjust to 
my neighbor in order to avoid a greater money loss 
to myself. Does Dr. McDonald mean this? Is it 
sound morality? 

In many other cases of doubt, the rule cannot be 
applied for want of definiteness in the elements of 
the case, or because the two evils or losses are incom- 
mensurable, or too dependent on subjective consid- 
erations. I doubt, for example, whether I have said 
my Breviary. In such cases Dr. McDonald tells us, 



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326 ** PRINCIPLES OP MORAL 8CIBNCB** 

if I understand him rightly, to estimate the relation 
of the loss accruing from enforcing a law which does 
not exist, to that which is caused by not enforcing 
a law which does exist The loss accruing from en- 
forcing a law wliich does not exist in this case is 
about an hour of my time; but, on the other hand, 
by saying my Breviary again I gain merit. On the 
other side of the account by not enforcing a law which 
does exist I lose spiritual merit, but I gain an hour 
of time. Dr. McDonald seems to suppose that there 
is always loss to somebody, the Church or the law- 
giver perhaps, when a doubtful law is not enforced. 
This I fail to see. When an adverse custom makes the 
obligation of a law first of all doubtful, and then re- 
moves it altogether, is it not for the public good in the 
circumstances? Putting this aside, how can the loss 
of merit be measured in this case? On one supposi- 
tion I gain merit for saying my Breviary twice in the 
day, on the other I lose what I should have gained 
by saying it once. Then, what is the relation between 
the value of merit and of time? And what value 
shall I give to my time? It is worth more in the 
morning when I am fresh; less after dinner; it has 
probably a middle value in the evening up to, say, six 
o'clock, when it rapidly increases till bed-time. But 
how measure all this quantitatively for the purposes 
of the formula? 

Then there is the difficulty of assessing the proba- 
bilities. Dr. McDonald takes it for granted that a 
probabilist will assess them differently from an 
equiprobabilist. Here, then, we are landed in all the 
dangers of subjectivism. In short. Dr. McDonald's 



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- PRINCIPLES OP MORAL BCIENCE - 327 

great principle had better be confined to the class of 
cases for which it is suitable^ and for which it is com- 
monly employed by theologians. If we attempt to 
apply it to other cases, we shall find that it is no fixed 
guide, but a very weathercock which will point in any 
direction towards which the impulse of passion drives 
us. 

The forgoing strictures on the special conclusions 
arrived at by Dr. McDonald in his book suggest a 
question with r^ard to his fundamental assumption, 
that the general principles as stated in our text-books 
on Human Acts, etc., are not in keeping with the par- 
ticular conclusions formulated in the treatises on the 
special virtues. Is this true? 

It seems to me that it is only true in a very quali- 
fied and immaterial sense. The general principles 
necessarily abstract from special features and partic- 
ular circumstances, which have to be considered and 
allowed for, when the general principles are applied 
to concrete cases. This is no more than has to be 
done in other sciences. When we apply the truths 
of pure mathematics to physical science, corrections 
and allowances have to be made continually. The 
infinite complications of nature are too complex for 
our abstract theories. In some such sense it may be 
said that the intricacies of human acts cannot be ex- 
pressed in a simple formula. And yet, just as no one 
would deny the truth and the value of pure mechan- 
ics, because the truths it teaches have to be applied 
with caution and with necessary corrections when we 
come to applied mechanics, so the truth and the value 
of the general principles of morality should not be im- 



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828 *" PRINCIPLES OP MORAL 8CIBNCB** 

pngned because in their application we have to allow 
for special circumstances. This is done by theolo- 
gians, who frequently apply a general principle 
tacitly, without quoting it in so many words, just as 
the mathematician uses the multiplication table, or 
the logician the principle of contradiction. If Dr. 
McDonald will give due attention to these considera- 
tions, I shall be surprised if the inconsistency which 
he has noticed in our text-books will not disappear. 



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XVIII 

SCRUPLES 

Scruples are as distressing and dangerous to the 
poor penitent who suffers from them as they are 
troublesome and difficult to deal with from the point 
of view of the confessor. Theologians have studied 
the subject for centuries, and we have the results of 
their labors in our handbooks of moral theology. 
There we find the notion of the scrupulous conscience 
accurately defined, its causes traced, and various rem- 
edies prescribed. Among the causes of scruples those 
of the natural order predominate. Thus, to select 
one of our modern theologians, although Lehmkuhl 
teaches that scruples may be due to the action of the 
devil, and that we must also take into account the 
permission of Almighty God, yet he pays most atten- 
tion to the natural causes of scruples. These, he 
says, may be either bodily or spiritual. In detail he 
enumerates a melancholy and timid disposition, a 
diseased state of the brain and of the nervous system, 
weakness caused by overwork, study, or austerities, 
weakness of judgment, pride and self-conceit, sugges- 
tion by reading scrupulous authors or from coming 
under the influence of a too scrupulous confessor. It 
is obvious that these natural causes may, and proba- 
bly will, manifest themselves in other matters besides 
scruples of conscience about sin and confession. We 

320 



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330 SCRUPLES 

are not, then, surprised to find that this is so. A 
pathological state of mind, of which the scrupulous 
conscience is only one manifestation, has long been 
recognized by the medical profession. However, it 
has been specially studied by the medical profession 
only within the last fifty or sixty years, and by for- 
eign more than by British, doctors. It may be of in- 
terest, and not without profit, to see something of 
what the doctors of medicine have done in this field, 
a field common to them and to the moral theologian. 

It will be best to begin by transcribing a few typi- 
cal cases. These will convince us that medicine has 
essentially the same phenomena to deal with as moral 
theology has. What the moral theologian calls 
scrupulosity, the medical practitioner calls the doubt- 
ing mania, in French folie du doute, and d4Ure du 
toucher, in German OrUhelsiicht. 

My batch of cases is taken from Hypnotism, by J. 
Milne Bramwell, M.B., CM., London, 1906. 

In the first case, which I select out of many, the 
moral element is very conspicuous. A confessor 
would not be astonished if he got such a case in the 
confessional. He would class it among those in which 
the sufferer fears sin in all his actions. 

'*Mr. y aged 28, first comgulted me in April, 1894. 

His father was very nervous and passionate, and had suf- 
fered from brain fever and chorea. At the age of 14, the 
patient had many religious doubts and fears, and believed 
he had committed the unpardonable sin. At 16, while 
working in a cocoa manufactory, he began to fear that 
the red lead, which was used in fastening certain hot pipes, 
might get into the tins containing cocoa, and so poison 
people. This was the commencement of a folie du doute 



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SCRUPLES 331 

and delire chi toucher, which had never since left him. 
Instead of going on with his work he was irresistibly im- 
pelled to clean and redean the tins. The following is 
taken from the letter of a friend to whom he confided his 

troubles ^-* On October 1st, 1891, Mr. told me that 

he had attempted to commit suicide, as his life was so mis- 
erable (he had taken poison). He had read of a case of 
poisoning through eating chocolate, and connected himself 
with it, though it was five years since he had helped to 
manufacture any. He now believed he might have been 
careless with the molds, and thus have produced a poisoned 
chocolate, which years afterwards had caused the child's 
death!' The grotesque absurdity of the story, as he re- 
lated it to me, would have made me laugh, had I not felt 
how terribly real it was to him. His vivid imagination 
had pictured every incident of the tragedy : the child buy- 
ing the chocolate, running home full of happiness, then 
becoming ill and gradually sickening in awful agony till 
released by death. The keenness of mind with which he 
sought to prove the reasonableness of his belief that he 
had poisoned the child was extraordinary. He wrote: — 
* Yesterday I was unscrewing some gas burners in a pro- 
vision shop and got some white lead on my hands, and 
I have been thinking that it may have got amongst the 
food.* I found that brooding over this fancy had brought 
him to the verge of despair, and for weeks his life was a 
perpetual agony. He worries himself about his work of 
fixing advertisement-plates to walls, and can never per- 
suade hunself that they are securely fastened. He fancies 
the nails are bad, or the mortar loose, and makes himself 
ill over it. I have pointed out to him that if a plate fell 
it would almost invariably slide down the wall. This has 
not prevented him from painting a most elaborate mental 
picture of the decapitation of an unfortunate youngster, 
who happened to be playing marbles with his head against 
the wall. To enumerate all his troubles would take a 
small volume. . . . When I first saw the patient the folie 



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332 80RVPLB8 

di0 doute and dSUre du toucher were constant, and most 
varied in their manifestations. If he accidentally touched 
persons in the street, he began to fear that he might have 
injured them, and exaggerated the touch into a more or 
less violent push. If the person touched were a woman, 
he feared that she might have been pregnant, and that he 
might have injured the child. If he saw a piece of orange- 
peel on the pavement, he kicked it into the road, but soon 
afterwards began to think that this was a more dangerous 
place, as any one slipping on it might strike his head 
against the curb-citone ; and so he was irresistibly impelled 
to return and put it in its former position. At one time 
he used to bind himself to perform certain acts by vowing 
he would give Gk>d his money if he did not do them. Then, 
sometimes, he was uncertain whether he had vowed or not ; 
owing to this he gave sums to religious objects which were 
quite disproportionate to his income. Apart from his pe- 
culiar fancies, I found the patient perfectly rational and 
intelligent ; and though his delire du toucher hindered him 
greatly in his work, he generally managed to execute it, 
but on some occasions he was compelled to abandon the 
attempt."^ 

The next case has also a moral tinge in it 

**Mr. , aged 32, April, 1895. Ten years previously 

this patient began to have peculiar doubts and fears. He 
felt that if he did anything opposed to popular supersti- 
tion something dreadful would happen to the Almighty. 
He was capable of recognizing the absurdity of this when 
it was pointed out to him; but directly afterwards his 
morbid ideas returned and governed his actions. Every 
fresh superstition he heard of was added to his list; and 
so many unlucky days and places were created by his 
doing, or failing to do, things against, or in conformity 
with, these superstitions, that his actions were seriously 
interfered with. Thus, months often passed before he 

1 Op. cit., p. 241. 



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BCRUPLBB 383 

coald find a propitious day for buying an article of clothe 
ingy and a still longer time would elapse before he found 
a suitable occasion to put it on. Sometimes there was no- 
where for him to go, and nothing he could do. He was 
utterly wretched, but had succeeded in concealing his 
trouble &om every one,"* 

There is no ethical quality in the next two cases. 

*'Mr. , aged 25, first consulted me March, 1890. 

Formerly strong and athletic, distinguished football player, 
bicyclist, etc. Two years previously, after the death of 
his mother from cancer of the breast, he began to fear that 
he might contract the same disease, lliis idea grew 
stronger and stronger; he became neurasthenic, and suf- 
fered from insomnia, depression, dyspepsia, etc. Finally 
the dread of cancer passed into the firm conviction that 
his left breast was infected by it. He now remained 
nearly always in one room, and would not go into another 
without mufiOling himself up and putting on an overcoat. 
For some months he complained of difficulty in moving the 
left arm, and carried it in a sling. I found nothing to 
justify his fears, but the muscles of the arm were distinctly 
wasted &om disuse."' 

'^ A man aged 40, of healthy constitution, has since child- 
hood attached prophetic signification to puerile facts and 
events. To wear a certain necktie promises him happiness 
or unhappiness. If he does not touch a certain boundary- 
stone he thinks evil will happen to him. If he does not 
re-read a certain line, or make a certain letter thicker when 
writing, something horrible will befall him. At first, his 
strange ideas were insignificant, or he was able to resist 
them ; but as he grew older they filled his life and rendered 
it intolerable. For twenty years he made a pilgrimage 
every Sunday to the railway station in order to kick a 
certain post three times with each foot. If he did not do 

s op. dt, p. 244. s op. oU., p. 239. 



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334 80BUPLB8 

this his father would die. In order to rid himself of these 
obsessions he made vows and associated threats with them. 
He said, for example: 'If I yield to one of my caprices 
in the coarse of an hour I shall have apoplexy before 
twenty-four hours have passed.' At first this succeeded, 
but soon the effect of the vows diminished, and he was 
compelled to make them stronger. The unhappy man now 
stands sometimes for a quarter of an hour muttering the 
most fearful imprecations, in order to get the strength to 
go an errand. If he omits them he is forced to obey the 
most absurd impulses. He must stop before a certain 
house, retrace his steps, touch boundaries, stop passers-by, 
or touch their clothes : in a word, he is obliged to act like 
a maniac. His intellect is perfectly normal, and he at- 
tends to his business as if nothing were the matter." ^ 

These senseless fears and anxieties are often con- 
nected with the sufferer's professional duties. 

''A young priest, not timid in the performance of his 
other religious duties, suffered agony on entering the pul- 
pit. Another suffered in the same way when he received 
a confession. A medical student suffered extreme agony 
at the sight of a few drops of blood. A chemist made up 
a prescription which caused the death of a customer. He 
was able to prove that it was dispensed exactly as ordered 
by the doctor; but, as his existence became a veritable 
torture from constant fear of making a mistake, he sold 
his business. A notary had morbid fears only when he 
had to give a professional opinion. A hairdresser noticed 
that his hand trembled one day, and then constantly 
dreaded that this would reappear when he shaved his best 
customers. The same anxiety did not exist when he had 
to shave a poor or unknown customer. Dr. Fr6mineau 
reports the case of an actor who abandoned his profession 
on account of extreme stage-fright. This condition only 

«Op.oi^, p. 250. 



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aoRUPLsa 335 

appeared after a snccessfol career. Dr. B^rillon reports 
several similar cases. Beigler has noticed a morbid fear 
amongst railway mechanics, to which he has given the name 
of MSrodromaphobie; this is characterized hy an extraor- 
dinary aversion to their habitoal occapation, and fhe sight 
of a train or the whistle of an engine is sufficient to revive 
their anxiety. Orasset mentions that a distinguished 
Parisian surgeon commences to be anxious the moment a 
patient leaves his consulting-room with a prescription. He 
anxiously asks himself whether he could have written 
centigrammes instead of milligrammes; and only recovers 
his mental calm when his servant, sent to seek the patient, 
brings back the prescription, and he can see that it is all 
right. Another doctor, he says, is rendered perfectly mis- 
erable by the fear of microbes. Brochin reports the case 
of a doctor who fears no contagious malady except diph- 
theria, and who shows proof of veritable heroism every 
time he sees a diphtheritic patient. A case has recently 
been reported from abroad, where a medical man, dreading 
that his fees might be the means of contagion, invented 
elaborate methods of sterilizing them; and I know of a 
similar case in this country."* 

These cases could be multiplied indeflnitely, but 
they are fairly typical and will serve our present pur- 
pose. In all of them the common element of vain 
fears and consequent anxieties is conspicuous. This 
same element is that which constitutes the essence of 
a scruple^ and the only difference between them and 
ordinary cases of scruples lies in the object of the 
empty dread and anxiety. The scrupulous person 
has an unreasoning dread of committing sin, and is 
morbidly anxious about it While in some of the 
cases cited a similar object may be discerned^ in oth- 

sOp. c^.,p. 261. 



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336 80RUPLE8 

era the object of dread and anxiety has nothing to do 
with ethics and morality. We are then justified in 
regarding the object of these vain dreads as acci- 
dental and immaterial; the essence of scruples, folie 
du doute, or the doubting mania is the same, and it 
lies in the vain dread of something and consequent 
anxiety and trouble about it. 

Medical writers agree in classifying these and al- 
lied pathological states of mind under the head of 
fixed ideas or obsessions. They note that there is a 
gradual progress from the state of perfect sanity, the 
mens aana m corpore swno, to that of insanity and 
madness. The sane mind estimates things at their 
true value. If an object is to be feared and avoided, 
it prescribes the necessary means to be taken for 
that purpose and entrusts the will with the task of 
putting them in execution. It does not fear an evil 
more than is reasonable, and it has control over its 
fears, so that it can dismiss them if they are ground- 
less, or, at least, prevent them from paralyzing all 
activity. Such a state of perfect health is rare. We 
are nearly all a little bit mad and a prey to our im- 
pressions and imaginations. Something makes a 
vivid impression on us, a musical air, a joke, an apt 
phrase, or an unki^d look or word, and it takes pos- 
session of the mind. By constant repetition the ef- 
fect becomes intensified, exaggerated, and persistent; 
we cannot get rid of the idea; it refuses to budge even 
at our peremptory word of command. 

No very great harm has been done so far, but every 
idea has a tendency to get itself translated into act. 
If it is deeply ingrained in the imagination, vivid, 



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80BUPLE8 337 

and persistent, it exerts a strong attractive or repul- 
sive force on the will. If the will is weak, either 
from natural causes or from habit, if it has been ac- 
customed to yield and to allow the idea to have free 
course, we have the first pronounced stage of mental 
disease, the fixed idea properly so called. 

Fixed ideas of this kind manifest themselves in 
very various ways. The following types are familiar 
to students of the subject: — Arithmomaniacs are im- 
pelled by an unreasoning impulse to count all sorts 
of objects and to draw up statistics. Onomato- 
maniacs feel a morbid desire to know the names of 
everybody they meet Metaphysical maniacs are tor- 
mented by a craving to get to the bottom of insoluble 
problems. I knew a case of an ecclesiastical student 
who furtively attended the Mass said for the people 
on Sundays in order that he might be able to draw 
up statistics about the attendance. He put down in 
his book how many men, women, boys, and girls at- 
tended Mass every Sunday and holy-day of the year. 
A college boy whom I knew kept a record of all the 
cricket scores of the season, and in his spare time he 
drew up imaginary matches and assigned imaginary 
scores to the players. A typical case is quoted by 
Ribot: 

"A young law student, the son of neuropathic parents, 
was completely absorbed with the idea of knowing the 
origin, the why, and the how of the forced circulation of 
bank-notes. . . . This thought kept his attention continu- 
ally strained, prevented him from doing anything else, 
placed a bar between the external world and himself, and . 
whatever efforts he might make to rid himself of it, he 



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338 80RUPLE8 

was utterly unable to accomplish that purpose. Finally 
concluding that notwithstanding his long reflections and 
deep researches to the end of solving this vexed problem, 
he was incapable of any other mental work, he fell into 
such a state of despondency and apathy that he desired 
to discontinue his course of studies. . . . His sleep insuf- 
ficient and broken ; frequently he lay awake whole nights, 
ever absorbed by his dominant idea. In this case a very 
singular phenomenon must be noted; namely, that in con- 
sequence of the continuous tension of his mind upon the 
problem of bank-notes and their forced circulation, he at 
last retained permanently before his eyes the image and 
picture of the bank-notes themselves, in all their varieties 
of form, size, and color. The idea with its incessant repe- 
titions and intensity, came to assume a force of projection 
that made it equivalent to reality. Yet he himself had 
ever the full consciousness that the images floating before 
his eyes were merely a freak of his imagination." • 

This last characteristic is important. One who is 
laboring under a fixed idea is conscious of his weak- 
ness, and is often ashamed of it, but for all that he 
yields to it, and finds it more or less difficult to avoid 
doing so. 

In this first class of fixed ideas the intellect alone 
is concerned. In the second class an emotional ele- 
ment also makes its appearance. The besetting idea 
is accompanied by fear, dread, and anxiety, and to 
this class scruples belong. Here also the objects 
which excite the unreasoning dread are very numer- 
ous and varied. In agoraphobia the sufferer cannot 
cross an open space without being overcome by a feel- 
ing of dizziness; in claustrophobia, on the contrary, 
the object of dread is a confined space; some people 

^The Psychology of Attention, Eng. transl., p. 87. 



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aoBUPLES 339 

dare not look down from a lofty height for fear of 
throwing themselves down. Some are morbidly 
afraid of infection from disease and are constantly 
washing their hands to escape it; others are never 
satisfied that they have locked the safe, or their place 
of business, or the door of their house when they left, 
and they are impelled to return again and again to 
make sure, and yet they are never satisfied. How- 
ever, they have not as yet lost all self-control in the 
matter, they sometimes succeed in resisting the im- 
pulse which they well know is foolish and groundless. 
In this respect they differ from the third class where 
the will has become powerless to resist the impulse. 
To this third class belong kleptomaniacs, eroto- 
maniacs, dipsomaniacs, homicidal and suicidal 
maniacs, and many other instances. With the loss 
of self-control this third claas has passed beyond the 
range of help at the hands of the confessor; we are 
no further concerned with it beyond marking it as the 
limit toward which the other classes tend. We are 
here interested in the causes which produce the sec- 
ond class and in the remedies to be applied for their 
cure. 

There is a general consensus of opinion among the 
medical faculty that all these troubles are due to one 
and the same physical cause — degeneracy. Eibot 
says: — 

"The authors that have investigated the determining 
causes of fixed ideas, all reach the same conclusion; they 
find it, namely, to be a symptom of degeneration. One 
might even maintain that not everybody who may wish it 
can have fixed ideas. A primordial condition — ^the neuro- 



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340 aORVPLES 

pathic constitution — ^is requisite. The latter may be in- 
herited, or it may be acquired. Persons of the one class 
are of the o£bpring of parents to whom they are indebted 
for the sad legacy of degenerate organisms. These are by 
far the most numerous. The others have been exhausted 
by circumstances and mode of life : physical or intellectual 
fatigue, emotions, strong passions, sexual or other excesses, 
anemia, debilitating diseases, etc." ' 

As we have seen, theologians, too, are prepared to 
assign to degeneracy, physical or nervous debility, a 
large share in the production of scruples. However, 
they mention other causes as well, and in this they 
would seem to have the support of Dr. Bramwell, who 
writes : — 

*' Imperative ideas are usually regarded as being typical 
of degeneracy, and especially of hereditary degeneracy. 
Some of my cases seem to confirm this: they were weak 
mentally and physically, and had unsatisfactory hereditary 
antecedents. ... On the other hand, the transition from 
the normal state to imperative ideas, is almost insensible — 
the repetition of an insignificant saying being, according 
to Ribot, the slightest form, and preoccupation, such as 
anxiety about an examination, a degree higher. Most 
children, too, have suffered at one time or another from 
imperative ideas. This appears to arise from an exag- 
gerated sense of the importance of what they say and do, 
and also from an exaggerated fear regarding the notice 
taken of them by others. [Is not this allied to the pride 
and self-conceit mentioned as causes of scruples by theo- 
logians f] Some of my patients were physically far above 
the average, and many of them possessed mental endow- 
ments of high quality, and their morbid ideas did not 
prevent them doing valuable work. Most of them, it is 
true, were of an emotional nervous type, but is the sensi- 

T The Psychology of Attention, Eng. transl., p. 89. 



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aoRUPLsa 341 

tive, mobile brain neceasarily degenerate t May not the 
accidents to which it is liable be the result of its higher 
and more complex development f The thoroughbred is 
more emotional and nervous than the cart-horse, but is 
this necessarily an evidence of its hereditary degeneracy f • 

In the light of the foregoing study of the nature 
and causes of scruples, the rules given by theologians 
for their cure will, if I mistake not, acquire a new 
value. First and foremost we see the necessity of a 
prudent, kind, but firm, confessor. He will not get 
angry or impatient with his scrupulous penitent, the 
case will rather excite his interest and sympathy. 
As soon as he haa convinced himself that his penitent 
is really scrupulous, he will try to discover the cause 
of his malady. Very often the cause will be degen- 
eracy in the medical sense, and the confessor, while 
prescribing other remedies, will take care to recom- 
mend him to see a doctor or he will himself suggest 
a holiday or feeding up. If the cause is some form 
of pride he will know how to administer a paternal 
snubbing when occasion arises. As the scruples are 
nothing but empty fears, he will briefly point this 
out to his afflicted penitent, and as the scrupulous 
state has been formed by indulging those vain fears, 
the confessor will take care as far as possible to stop 
the process of fostering them. He will not allow any- 
thing to be said about them, they must not be con- 
fessed, nor even thought about, if that is possible. 
With this object in view he will prescribe constant 
occupation in interesting work of one sort or another. 
Such indirect remedies are often most effective, but 

• Hynnotimn, p. 256. 



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342 S0BUPLB8 

they should be supplemented by direct action against 
the scrupulous dread; much in the same way as a 
horse is taught to face objects at which it is inclined 
to shy. If the scruples have their origin in indis- 
creet fervor, the penitent should be taught that God 
asks for a reasonable service, and that spiritual 
progress, if it is to be solid and lasting, is almost 
always slow and gradual. An humble consciousness 
of one's own weakness and consequent trust in God 
are great saf^^ards against the danger of scruples. 



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XIX 

THE DOOTBINE ON SACBILEOE IN MORAL 
THEOLOGY 

It would be worth while for some modem Sip Henry 
Spelman to write a book on the history and fate of 
sacrilege in modem times. Starting from the first 
French Bevolntiony or even somewhat earlier, and 
continuing his narrative down to our own times, the 
writer would find only too abundant material for his 
purpose. In France, in Italy, and in Spain, espe- 
cially, the materijal would be plentiful, and if the his- 
tory of private owners of Church property is any re- 
flex of that of those nations themselves, the moral 
that sacrilege does not prosper even in this world 
would be no less striking than it appears in the pages 
of the worthy knight of the time of Queen Elizabeth 
and King James L Sir Henry points out that the 
immense treasure which the suppression of the mon- 
asteries put into the hands of Henry VIII melted 
away, nobody knew how; while rebellion and disaster 
followed quickly on the crimes by which the religious 
houses were robbed and destroyed. The property it- 
self seemed to carry a curse with it, so that sterility^ 
and death by violence became marked character- 
istics of the families that were enriched with abbey 
lands. 

848 



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844 DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 

In one respect indeed the modern imitators of Henry 
VIII have improved on his example. Sir Henry tells 
us what became of the invaluable libraries which 
formed the chief treasure of the suppressed monas- 
teries: 

Yet the desolation was so universal, that John Bale 
doth much lament the loss and spoil of books and libraries 
in his Epistle upon Leland's Journal, Leland being em- 
ployed by the king to survey and preserve the choicest 
books in their libraries. If there had been in every shire 
of England (saith Bale) but one solemn library to the 
preservation of those noble works and preferment of good 
learning in our posterity, it had been yet somewhat ; but to 
destroy all without consideration, it is, and will be unto 
England forever, a most horrible infamy amongst the 
grave seniors of other nations. Adding further, that they 
who got and purchased the religious houses at the dissolu- 
tion of them, took the libraries as part of the bargain and 
booty, — ^reserving of those library books, some to serve 
their jakes, some to scour their candlesticks, and some to 
rub their boots, some they sold to the grocers and soap- 
sellers, and some they sent over sea to the bookbinders; 
not in small numbers, but at times whole shipfuls, to the 
wondering of foreign nations. And after he also addeth, 
''I know a merchantman, which all this time shall be name- 
less, that bought the contents of two noble libraries for 
forty shillings each, a shame it is to be spoken : this stuff 
hath he occasioned instead of gray paper by the space of 
more than these ten years, and yet he hath enough for 
many years to come : a prodigious example is this, and to 
be abhorred of all men who love their nation as they should 
do. ' ' And well he might exclaim, ' ' a prodigious example, ' ' 
it being a most wicked and detestable injury to religion 
and learning.^ 

1 History and Fate of Sacrilege, p. 149. 



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DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 345 

Nowadays books are valued by others, as well as 
by monks and churchmen, and so the books found in 
the monasteries suppressed by the state in our day 
are placed in public libraries, and the duplicate copies 
are thrown on the market, much to the benefit of the 
book collector. 

As the student of moral theology is aware, there are 
many difficult questions concerning the doctrine of 
sacrilege. Doctors are not agreed even upon the 
definition of the term. Sir Henry Spelman, who was 
deeply read in the scholastic theologians and canon- 
ists, defines it as — ^^^an invading, stealing, or pur- 
loining from God, any sacred thing, either belonging 
to the majesty of His Person, or appropriate to the 
celebration of His divine service." ^ Thus there are 
two kinds of sacrilege; the first kind is committed 
" when the very Deity is invaded, profaned, or robbed 
of Its glory," says Sir Henry. And so the sin of 
Lucifer and his angels, of our first parents, of Cain, 
of those destroyed by the fiood, of the builders of the 
tower of Babel, of Nimrod, and of others, was a sin 
of sacrilege. "In this high sin," he further says, 
" are blasphemers, sorcerers, witches, and enchanters ; 
and as it maketh the greatest irruption into the glori- 
ous majesty of Almighty God, so it maketh also the 
greatest divorce betwixt God and man." ® In other 
words, as modem theologians say, all sins against the 
virtue of religion may be called sacrilege in the wider 
sense of the term. In this sense it is not a specific 
sin, but rather a genus containing under it many dif- 
ferent species of sin. 

«/d., p. 1. s/d., p. 2. 



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346 DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 

Sir Henry admits that this meaning of the term was 
not the common one with the schoolmen and canon- 
ists. "I come now," he says, "to the second part, 
which indeed is that which the schoolmen and canon- 
ists only call sacrilege, as though the former were 
of too high a nature to be expressed in the appella- 
tion : so exorbitant a sin, as that no name can prop- 
erly comprehend it: deofiaxla^ a warring against 
God, and dM^Xa^iea^ a direful violence upon Di- 
vine Majesty, a superlative sacrilege."* In the 
strict sense of the term, the specific sin of sacrilege 
is " a violating, misusing, or a putting away of things 
consecrated or appropriated to divine service or wor- 
ship of God : it hath many branches — time, persons, 
function, place: and materially. All (saith Thomas 
Aquinas) that pertains to irreverent treatment of 
holy things, pertains to the injury of God, and comes 
under the character of sacrilege. . . . Sacrilege of 
time is, when the sabbath or the Lord^s day is abused 
or profaned: this God expressly punished in the 
stick-gatherer." ^ 

Sir Henry had good authority for considering that 
sins committed on Sunday partake of the malice of 
sacrilege, as being a desecration of time set apart for 
the service of God ; but he knew of the contrary opin- 
ion, for he adds, quoting Soto, — "Some canonists 
seem not to reckon this under the common kind of 
sacrilege. So that in all that followeth we shall run 
the broken way of the schoolmen and canonists." ^ 

However, " the broken way of the schoolmen and 
canonists " is anything but straight or level at this 

* 76., p. 12. » 76., p. 12. « 7d., p. 13. 



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DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 347 

point. The great variety of opinions concerning par- 
ticular cases of sacrilege shows that it is not easy to 
say what constitutes the essence of the sin in all cases. 
What sort of violation or misuse of the person is 
requisite for sacrilege? Why is not detraction of a 
person consecrated to God sacrilege? Why is not 
blasphemy, or any grave sin committed by a priest 
sacrilege, since it is a violation of one consecrated to 
God? Then, what is necessary to constitute a person 
consecrated to God? Will a private vow suffice, and 
if not, why not? What sins committed in church are 
sacrilegious? 

Is it possible to explain the nature of sacrilege so 
that it will be easier to see our way toward giv- 
ing satisfactory answers to such questions as the 
above? 

When an object is dedicated to the service of God, 
it acquires thereby a new dignity, it is stamped with 
the seal of God, it enters in a sense into the sphere 
of the divine. As such it is only right and proper 
that it should be treated with a certain reverence 
and respect, which are due in the first place and in 
the highest degree to God Himself, and secondarily 
to all that in any special way belong to God.^ 

To treat such an object dedicated to God without 
due reverence will in some degree be an act of irrev- 
erence toward God Himself, and so in some degree 
sinful. Such an act is a fault against that obliga- 
tion which binds all God^s rational creatures to treat 
their Creator and all that in any special sense belong 
to Him with respect and deference. This motive St. 

t 8. Thomas, II., II., q. d9, a. 1. 



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348 DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 

Paul uses to exhort the Corinthians to avoid sin, es- 
pecially sins of the flesh.® 

The Christian is by Baptism dedicated and conse- 
crated to the service of God ; he is the temple of the 
Holy Spirit; he is under a special obligation not to 
defile himself by sin. Sin in such a one is a desecra- 
tion, a violation of what has been devoted to God's 
service. 

All this is perfectly true, but it is no more than 
saying that there is a special malice and deformity in 
sin committed by a Christian. That faculties and 
organs, which have been solemnly dedicated to the 
service of the All Holy, should be soiled by being em- 
ployed in the service of the devil is a profaning of 
things sacred, and an act of disrespect to God to whom 
they belong. 

In a still greater degree is there a special malice in 
the sins of a priest or of a religious. Both of these 
have received a special consecration to the service of 
God, over and above that by which they were dedi- 
cated to Him in Baptism. Both have consequently 
taken upon themselves special obligations of leading 
holy lives ; sin is in a special manner unbecoming in 
them ; it is a violation of what by so many titles be- 
longs to God. However, this special malice which 
qualifies the sins of Christians, priests and religious, 
is to a greater or less degree common to all the sins 
which they commit. It is not a distinctive mark of 
any one sin, and so it cannot constitute the essence of 
the particular sin of sacrilege. At most it may be 
said that in a wide sense, the special consecration to 

« I Ck)r. 3 : 16. 



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DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 349 

Ood by which Christians, priests and religious, are 
devoted to His service, makes their sins partake some- 
what of the nature of sacrilege, in the sense in which 
St. Bernard said that unseemly joking in the mouth 
of a priest is sacrilege.^ 

All this seems to show that the special sin of sacri- 
lege does not consist in the violation of a person or 
thing which only in some general way has been dedi- 
cated to the service of God. A certain irreverence, 
it is true, characterizes any improper use of such 
person or thing, and such irreverence, indirectly at 
least, affects God Himself; but this cannot consti- 
tute the special malice which differentiates the specific 
sin of sacrilege. 

Here we are considering those objects which of 
themselves are not sacred. There are, it is true, some 
things, which of their own nature and by their very 
institution belong wholly to God's service, and have 
no other use but in His service. Such are the sacra- 
ments of the Church. They are the sacred means in- 
stituted by Christ for sanctifying the souls of men. 
They belong to the supernatural order by their very 
institution and aim. Any abuse of them is an act of 
disrespect to the God-Man who instituted them, it is 
a violation of that which by its very nature is holy. 
So that any abuse of the sacraments or the holy 
sacrifice of the Mass has in it all that constitutes the 
essence of sacrilege. There are, however, other ob- 
jects which, although dedicated to God's service yet 
of their own nature do not belong to the sphere of the 
divine. They enter into the sphere of the divine by 

• De Cansid., lb. II., c. 13. 



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350 DOOTBiyS ON SACRILEGE IN MORAL THEOLOGY 

the fact of their consecration. With regard to such 
objects, we have seen that the mere fact of their dedi- 
cation in any general way is not of itself sufficient to 
cause any abuse of them to have the malice of the 
specific sin of sacrilege. Some other element is nec- 
essary for this. What is that element? 

The answer to this question is indicated to us by 
the way in which persons, places and objects became 
holy and sacred under the Old Law. In the Book of 
Leviticus ^^ we are told how Aaron and his sons were 
consecrated to the service of God by Moses in a pub- 
lic and solemn manner prescribed by Ood Himself. 
The various instruments and objects of divine service 
were also solemnly anointed and dedicated to their 
sacred purpose by God's own directions.^^ 

They were thereby taken out of the category of 
things profane, and became holy, consecrated, to be 
touched and handled by no one who was not himself 
sanctified with special rites. The Temple with its 
divisicms of various degrees of holiness, which im- 
plied various d^rees of separation from things pro- 
fane, and the very place on which the Temple was 
built, were dedicated in a solemn manner to God. 
By the act of consecration all the requisites of divine 
service were not merely dedicated to God, but they 
were publicly separated from the objects of everyday 
life; it was solemnly forbidden to treat them as ob- 
jects of common use. The Temple was profaned and 
desecrated by the very entrance of the profane, the 
sacred vessels were profaned by common use, it was 
sacrilege for a non-consecrated person to presume to 

loLeYltlcoBa u Ex. 90:28. 



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DOOTBINB ON 8ACBILBGB IN MORAL THB0L007 351 

fulfil the office of a priest. By the consecration then 
of things to the service of Ood by duly appointed 
ministers according to the prescribed form, those 
things became sacred in a special sense^ and an obli- 
gation was laid upon all to treat them with special 
reverence^ inasmuch as they had been thus dedicated 
to Ood. 

It is difficult to see how such an obligation could 
arise, unless it were imposed in some such way by 
competent authority. This seems to be in the mind 
of Snares, when he says that no private dedication 
of one's self to the worship of God is sufficient to 
make the person sacred, but that this effect must 
come from law.^* When Laymann ^* and other theo- 
logians quote the Roman civil law in proof of this, 
they seem to appeal to the nature of things, and to 
reason and common sense. 

In the dedication of persons, places, and objects to 
the worship of Ood, the Christian Church was guided 
partly by what her Divine Founder had commis- 
sioned her to do, partly by the analogy of the Old 
Dispensation, partly by the natural fitness of things. 
In all that she did in this matter, she used the au- 
thority given to her by Ood Himself. And so from 
the earliest times there were in use in the Church spe- 
cial rites and ceremonies, not only for the solemn con- 
secration of her ministers, but for the consecration 
of virgins, and for the dedication to Ood of all that 
was required for divine service. Although a priest 
might give a simple blessing, the authority of a bishop 

uDe ReUff^ tract HI., lb. 8, c. % n. 1. 
i« Lib. 14, tract 10, c. 7, n. 2. 



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352 DOOTBINB ON SACRILEGE IN MORAL THEOLOGY 

was usually required for the solemn consecration of 
things to God. For this, as under the Old Law, holy 
oil is commonly employed. And so we have the well- 
known distinction between henedictiones invocativw 
and henedictiones consecrativce. By the former, 
Qod's blessing is invoked on the use of those things 
which are blessed, such as the food we eat, but they 
do not become holy and sacred thereby; whereas, by 
the latter, things are made holy and sacred, they are 
perpetually dedicated to the service of God, and can 
never again revert to profane uses, as is expressly laid 
down by the fifty-first Rule of Law in the Sixth Book 
of the Decretals. 

And so a private dedication to God by private au- 
thority is not sufficient to constitute persons, places, 
and things holy and sacred in such a manner that the 
special sin of sacrilege is committed by abuse of them. 
Public ecclesiastical authority is required for this, 
and ordinarily a public, solemn rite is used, approved 
by competent authority. The Pope, indeed, as su- 
preme legislator in the Church of God, is not subject 
to the provisions of positive ecclesiastical law, and 
he can consecrate things to God, and make them sa- 
cred by a mere act of his will;^* but subordinate 
ministers in the Church would seem to be bound to 
use the prescribed rites when they desire to consecrate 
things to God, and to make them sacred. 

The particular aspect, too, in which an object is ren- 
dered sacred by consecration depends in great meas- 
ure upon the intention of the Church. Thus by con- 
ferring minor orders, the Church makes the persons 

1* Lehmkuhl, Theol Mor., II., n. 586. 



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DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 353 

of clerics sacred in the sense that sacrilege is commit- 
ted by bodily ill-treatment of them, but it is not sac- 
rilege if they transgress the sixth commandment. 
On the other hand, sacred orders dedicate the cleric 
to the service of God by the observance of chastity, 
and sacrilege is committed by him if he violate that 
virtue. 

It would appear, then, that if we prescind from 
things which of their own nature are holy and sacred, 
as for example, the sacraments, the holy sacrifice 
of the Mass, and the relics of the saints, and consider 
that larger class of objects which become sacred by 
consecration, the specific sin of sacrilege is a conse- 
quence of positive law. It is a transgression of the 
positive law which out of reverence for God, to whom 
the object has been solemnly dedicated in legal form, 
forbids certain actions with reference to that object. 
If those forbidden actions are performed, the sin of 
sacrilege is committed, a violation of a sacred object 
in that respect in which it has been made holy and 
sacred by the will and solemn dedication of the 
Church. 

If this be the correct notion of sacrilege, it will be 
an easy matter to decide what particular sins fall un- 
der this specific head. To take the questions asked 
above: it is clear that detraction of a person conse- 
crated to God is not sacrilege, because the Church has 
not specially forbidden that violation of his rights, 
moved thereto by the motive of reverence for God. 
For the same reason all grave sins committed by a 
priest are not so many sacril^es ; but a violation of 
chastity, to the observance of which the Church has 



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354 DOCTRINE ON SACRILEGE IN MORAL THEOLOGY 

specially dedicated him, is sacrilege, in the specific 
sense of the term. It is clear, too, that a private vow 
of chastity does not consecrate the person to God; 
the authority of the Church must come in, as it does 
in the vow of chastity taken in the reception of sa- 
cred orders, and in profession in a religious order 
approved by the Church. Again, not all sins com- 
mitted in church will have the malice of sacrilege in 
the strict sense, but only those that have been spe- 
cially forbidden by the Church out of reverence for 
the house of God. Under this head will come all 
those sins by which the immunity of a sacred place is 
infringed, or by which a church is violated, so as to 
need reconciliation in due form. Theft of property 
belonging to the Church, or intrusted to the Church's 
keeping, will be sacrilege, even though such property 
be not in itself sacred, because there is a law of the 
Church which specially forbids such theft, and makes 
it sacrilege.**^ 

On the contrary, theft of a priest's private moneys 
will not be sacrilege for the opposite reason. Nor 
will all sins committed on the Sunday be sacrilege, 
for though that day be specially dedicated to God's 
service, yet there is no special law commanding us to 
keep the day holy by abstaining from all sin. 

It will not be difficult to apply the same principles 
to other disputed cases, and if this be done, light will 
be thrown on some difficult questions of moral theol- 
ogy, and " the broken way of the schoolmen and can- 
onists" will be made somewhat more straight and 
more level for the bewildered beginner. 

i» c. 3, C. XII., q. 2. 



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XX 

IS AN ACT OF CONTRITION DIFFICULT? 

In attempting to give an answer to this question 
I presuppose certain doctrines of Catholic faith. I 
presuppose that contrition is of such efficacy with 
God that an act of perfect contrition elicited from the 
motive of Qod^s infinite goodness at once reconciles 
the sinner with God. This it does by virtue of per- 
fect charity which contrition implicitly contains. I 
also presuppose that God seriously desires the salva- 
tion of all men, and in His Providence furnishes all 
with the means to obtain it. The question, then, is 
not merely one of speculative theology; it is exceed- 
ingly practical. For such as cannot receive the sac- 
rament of Penance and yet have committed mortal 
sin an act of perfect contrition, or of perfect love of 
God, is the only means of salvation. Thus the ques- 
tion, whether an act of contrition is difficult or not is 
practically the same as the question whether it is dif- 
ficult or not for the innumerable multitudes to ob- 
tain salvation who, for one reason or another, cannot 
receive the sacrament of Penance before death. 

Some Catholic writers hold that it is not difficult, 
especially for Catholics, to make an act of perfect 
contrition. Among these is a German writer, the 
Rev. J. von den Driesch, whose little book on Perfect 
Contrition I was instrumental in putting into the 

355 



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356 18 AN ACT OF CONTRITION DIFFICULT? 

hands of English readers some years ago. However, 
this consoling doctrine seems to be contrary to the 
Catechism of the Council of Trent. This authorita- 
tive source of Catholic doctrine has the following 
passage concerning Contrition: — 

Contrition, it is true, blots out sin; but who is ignorant 
that to effect this it must be so intense, so ardent, so vehe- 
ment, as to bear a proportion to the magnitude of the 
crimes which it effaces t This is a degree of contrition 
which few reach, and hence through perfect contrition 
alone very few indeed could hope to obtain the pardon of 
their sins.^ 

So, then, according to this authoritative source of 
Catholic teaching it is so difficult to make a perfect 
act of contrition that few make it, and very few, in- 
deed, could hope to obtain the pardon of their sins 
by perfect contrition alone. However great the au- 
thority of the Catechism of the Council of Trent may 
be, it is well known that there are in it points of doc- 
trine which have no greater weight than has a theo- 
logical opinion. I may instance what the Catechism 
says about the necessity of confessing the circum- 
stances of sin which only aggravate its malice, but 
do not change its nature. Is the above extract an- 
other such point in which one theological opinion is 
followed without depriving Catholics of the liberty 
to follow other and more consoling opinions if they 
choose to do so? Yes, it is, unless I am mistaken. 

In proof of this contention I may observe, in the 
first place, that in the above extract the Catechism 
seems to require more than the common teaching of 

1 " On the Sacrament of Penance," Donovan's translation, p. 271. 



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IS AN ACT OF CONTRITION DIFFICULTf 357 

Catholic schools reqnires. If the words be taken in 
their obvious sense they seem to require that an elB- 
cacious act of perfect contrition should be not only 
a detestation of sin above all other evils^ but that it 
should also be in the highest degree intense. On the 
contrary, the common teaching nowadays is that no 
special degree of intensity is required in the act of 
contrition provided that it be a detestation of sin 
above all other evils for the love of God.^ Indeed, 
the Catechism of the Council of Trent itself seems to 
teach the milder opinion in another place. There it 
says: — 

If, however, our contrition be not perfect, it may, never- 
theless, be true and efficacious; for as things which fall 
under the senses frequently touch the heart more sensibly 
than things purely spiritual, it will sometimes happen that 
persons feel more intense sorrow for the death of their 
children than for the grievousness of their sins.* 

So that, although supernatural contrition for sin 
may not be so intense as natural sorrow for the loss 
of a parent or husband or child, and so does not bear 
a proportion to the magnitude of the crimes which it 
effaces, nevertheless, it may, according to this extract, 
be true contrition and efficacious for the forgiveness 
of sin. 

The presumed necessity of so great intensity, ar- 
dor, and vehemence is the reason why the Catechism 
teaches that very few indeed could hope to obtain the 
pardon of their sins through perfect contrition alone. 
If that reason is not well grounded it may still be 

« See C. Peech, Praelectiones Dogmaiicae, vil., n. 137. 
t Donovan's translation, p. 266. 



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358 18 AN ACT OF CONTRITION DIPFIOULTt 

difficult on account of the nature of the act of con- 
trition or of the act of love which contrition implies. 
Of course both contrition and charity are acts of 
supernatural virtue^ and as such they are not only 
difficult but utterly impossible without the help of 
God's grace. Ood must move the intellect and stir 
the will with His grace to make the least act of su- 
pernatural virtue possible to man. But this being 
supposed, is it difficult to make acts of contrition and 
charity, either because God rarely grants the requisite 
grace, or for some other reason? 

To prepare the way for an attempted solution of 
this question, I would ask the reader to call to mind 
the close connection that exists between an act of 
contrition and an act of charity or love of Gk>d. The 
motive of contrition is God's infinite goodness, which 
is loved above all things, and which excites the sinner 
to hate sin above all other evils. So that wherever 
there is perfect contrition there is also perfect love. 
On the other hand, wherever there is perfect love and 
the consciousness that sin has been committed, it can- 
not be but that the love of God will move the sinner 
to detest sin above all things as being an offense of 
God whom it sovereignly loves. Contrition, then, and 
charity intermingle, as St. Francis of Sales teaches 
in his own inimitable way. He writes : — 

But I do not mean to say that the perfect love of Ood, 
by which we love Him above all things, always precedes 
this repentance, or that this repentance always precedes 
this love. For though it so often happens, still, at other 
times, as soon as divine love is bom in our hearts, penitence 
is bom within the love, and oftentimes penitence entering 



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18 AN ACT OF CONTRITIOV DIFFICULT f 359 

into onr hearts, love enters in penitence. And as when 
Esau was bom, Jacob, his twin brother, held him by the 
foot, that their births might not only follow the one the 
other, bnt also might deaye together and be intermingled; 
so repentance, rude and rough in regard of its pain, is 
bom first, as another Esau; and love, gentle and gracious 
as Jacob, holds him by the foot and cleaves nnto him so 
closely that their birth is but one, since the end of the 
birth of repentance is the beginning of that of i>erfect 
love. Now as Esau first appeared, so repentance ordi- 
narily makes itself to be seen before love, but love, as 
another Jacob, although the younger, afterwards subdues 
penitence, converting it into consolation.^ 

It would seem to follow from this that if contri- 
tion is difAcult, an act of charity must be difficult; 
and if love is easy so must contrition be. The ques- 
tion^ then^ whether it is difficult to make an act of 
perfect contrition may be put in another way. We 
may ask : Is it difficult to make an act of the perfect 
love of God? 

By the light of natural reason we can see in crea- 
tion, and in ourselves, plenty of indications that our 
Creator is a good God who pours Himself out in lov- 
ing goodness upon all things that He has made. He 
has given us the capacity to know and love Him, and 
He cannot but desire that we should do so. Indeed, 
we have a natural inclination to love God above all 
things. As St Francis of Sales teaches: 

Although now our human nature be not endowed with 
that original soundness and righteousness which the first 
man had in his creation, but on the contrary be greatly 
depraved by sin, yet still the holy inclination to love Qod 

4 The Love of God, Bk. II., a 20. 



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360 IS AN ACT OP CONTRITION DIFPIOULTt 

above all things stays with us, as also the natural light by 
which we see His sovereign goodness to be more worthy 
of love than all things; and it is impossible that one think- 
ing attentively upon Qod, yea even by natural reason only, 
should not feel a certain movement of love which the secret 
inclination of our nature excites in the bottom of our 
hearts by which at the first apprehension of this chief and 
sovereign object, the will is captured, and perceives itself 
stirred up to a complacency in it.*^ 

In another place of the same treatise the Saint 
teaches that unbaptized pagans are quite capable of 
repentance for sin, because it offends Gtod. He 
says: — 

There is yet another penitence which is indeed moral, 
yet religious too, yea in some sort divine, proceeding from 
the natural knowledge which we have of our offending 
Cfod by sin. For certainly many philosophers understood 
that to live virtuously was a thing agreeable to the divin- 
ity, and that consequently to live viciously was offensive 
to Him.* 

But we must have recourse to revelation if we want 
to know the truth about divine love in all its fulness, 
beauty, and consoling sincerity. In innumerable pas- 
sages of the Old and New Testaments Ood makes 
known His love for us in the most endearing expres- 
sions of human affection. In the most plaintive ac- 
cents of wounded affection He pleads for our love in 
return. Almost in despair He tells us that the sum 
and substance of the Law and the Prophets is that we 
should love Him. This is the first and the greatest 
commandment Foreseeing a possible excuse He as- 

» The Love of Ood, Bk. I., c 16. 
• Ibid., Bk. II, c. la 



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18 AN ACT OF CONTRITION DIFFICULT? 361 

sures us on His own divine authority that it is not 
difficult to love Him : — 

This commandment, that I command thee this day, is not 
above thee, nor far oflf from thee ; nor is it in heaven, that 
thou shouldst say: Which of us can go up to heaven to 
bring it unto us, and we may hear and fulfil it in workt 
Nor is it beyond the sea, that thou mayest excuse thyself 
and say: Which of us can cross the sea, and bring it unto 
us, that we may hear and do that which is commanded T 
But the word is very nigh unto thee, in thy mouth and in 
thy heart, that thou mayest do it. . . . That thou mayest 
love the Lord thy Qod.^ 

Before the institution of the sacrament of Penance, 
while perfect contrition was still the only means by 
which the sinner could be saved, God sent this mes- 
sage by His prophet: — 

Thus you have spoken, saying: Our iniquities and our 
sins are upon us, and we pine away in them: how, then, 
can we livet Say to them: As I live saith the Lord 
God, I desire not the death of the wicked, but that the 
wicked turn from his way, and live. Turn ye, turn ye 
from your evil ways; and why will you die, house of 
Israel t • 

All this is from the Old Testament, the law of fear, 
and much more could be quoted to the same effect 
It would be unmeaning if an act of contrition and of 
love were so difficult that few could reach it, and if 
very few, indeed, could hope to obtain the pardon of 
their sins through perfect contrition alone. That 
was the only means available for obtaining forgive- 
ness of sin under the Old Law. Under the New Law, 

7 Deuteronomy 80 : 11-16. « EEechlel 33 : 10, 11. 



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362 18 AN ACT OF CONTRITION DIFPIOULTt 

the law of love cast out the law of fear, and it be- 
came much easier to love God and to be reconciled 
with Him. We have far more abundant grace, and 
in the easy task of knowing and loving Jesus Christ 
we fulfil the precept of knowing and loving Gk)d. As 
St Francis of Sales says : — 

The sweet Jesus, who bought us with His blood, is in- 
finitely desirous that we should love Him, that we may 
eternally be saved, and desires we may be saved that we 
may love Him eternally ; His love tending to our salvation, 
and our salvation to His love. Ah! said He: I came to 
cast fire on the earth and what will I but that it be kin- 
dled. . . . That the commandment of love may be fulfilled, 
He leaves no living man without furnishing him abun- 
dantly with all means requisite thereto. God not only 
gives us a simple sufficiency of means to love Him, and in 
loving Him to save ourselves, but also a rich, ample, and 
magmficent sufficiency, and such as ought to be expected 
from so great a bounty as His.* 

According to the same great Doctor of Divine Love, 
when Our Lord sees a soul fall into sin He runs to its 
assistance : — 

Seeing it is not now necessary that He should employ 
His love in dying for us, when He sees the soul overthrown 
by sin He commonly runs to her succor, and by an un- 
speakable mercy lays open the door of her heart by the 
stings and remorses of conscience which come from the 
divers lights and inspirations which He puts into our 
hearts, with salutary movements, with which He makes 
the soul return to herself, and brings her back to good 
sentiments. And all this God works in us without our 
action, by His all amiable goodness, which prevents us 

9 The Love of God, Bk. II, c. S, 



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18 AN ACT OF CONTRITION DIFFICULT? 363 

with its gweetness. . . . The soul would remain lost in her 
sin, if God prevented her not. But if the soul thus excited 
add her consent to the solicitation of grace, seconding the 
inspiration which prevents her, and accepting the required 
helps provided for her by God, He will fortify her, and 
conduct her through various movements of faith, hope, and 
penitence, even till He restore her to her true spiritual 
health, which is no other thing than charity.*® 

The bold metaphor of the poet in the Hound of 
Heaven is amply justified by Catholic theology : — 

Nigh and nigh draws the chase. 
With unperturbed pace. 
Deliberate speed, majestic instancy; 
And past those noised Feet 
A voice comes yet more fleet — 
''Lo! naught contents thee, who content 'st not Me!" 

All that the human soul^ even though stained with 
sin^ has to do in order to be again united to God by 
love and contrition, is to yield her consent to the in- 
sistent pleadings of her divine Lover. 

At the request of His apostles, Our Lord furnished 
them and us with a set form of prayer suitable for 
ordinary and common use. The very first petition 
of the Our Father is an act of perfect love of God, as 
St. Thomas of Aquin and other theologians teach. 
Would not the Our Father be unsuited for common 
and ordinary use if so few could mean what they say 
while using it? And yet few could mean what they say, 
if few can make an act of love and contrition. No 
wonder, then, if Saint Jure, in his classical work on 

10 The Love of God, Bk. III., c. 8. 



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364 18 AN ACT OP CONTRITION DIFFICVLTt 

the Knowledge and Love of Jesus Christ asserts that 
it is easy to love God above all things. He writes : — 

Since it is commanded it is possible. We will go farther 
and we will say that it is not only possible but that it is 
easy. It it was easy for the Jews under the law of fear 
and severity, is it not still more ea^ for Christians under 
the law of grace and love? ^* 

The Ven. Robert Southwell, S. J., the martyr, holds 
that it is so easy to practise divine love that no one 
can excuse himself from practising it : — 

All men are able to love Thee, Lord, wise men and 
foolSy rich and poor, little and great, young and old, men 
and women, and to every estate and to every age, love is 
common ; no man is weak or feeble, no man is poor, no man 
is old to love. ... If any man should say that he cannot 
fast, or that he cannot give alms, or that he cannot go to 
Mass, we ought to believe him, but can any man say that 
he cannot lovef This is impossible.^' 

The Rev. J. von den Dresch maintains that Cath- 
olics often have perfect contrition without knowing 
it or thinking of it; for example, while devoutly hear- 
ing Mass, while making the Stations of the Cross, 
while piously contemplating a crucifix, or a picture of 
the Sacred Heart, while listening to a sermon, and so 
forth." Many priests, I think, especially if they 
work among the poor of Christ, would maintain the 
same. Finally, St. Francis of Sales writes: — 

While we are little children, we are wise like little chil- 
dren, we speak like little children, we love like little 

iiDe la Connaiaaance et de Vamour de Noire Seigneur Jeaus- 
Christ, liv. i., c. 14. 
12 A Hundred Meditations on the Love of God, p. 298. 
18 Perfect Contrition, p. 15. 



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18 AN ACT OF CONTRITION DIFFICULTt 365 

chfldren; but when we shall come to our perfect growth, 
there above in heaven, we shall be freed from oar state of 
infancy, and love God perfectly. Yet we are not for all 
this, during this infancy of our mortal life, to omit to do 
what in us lies according as we are commanded, since this 
is not only in our power, but is also very easy ; the whole 
commandment being of love, and of the love of Gk)d, who 
as He is sovereignly good, so is He sovereignly amiable.^^ 

So that when the Catechism of the Ck>ancil of Trent 
teaches that few reach the intensity required for a 
perfect act of contrition, and that very few, indeed, 
could hope to obtain the pardon of their sins by per- 
fect contrition alone, it does not teach what is of 
faith but of opinion only. Catholics, then, are free 
to follow other opinions which are more consoling, 
and, as it seems to us, redound more to the honor and 
glory of God. 

Nor do I feel that my withers are wrung by what 
Father Faber says in his work on the Blessed Saorxh 
ment. He gives the quotation from the Catechism 
of the Council of Trent on which I have been com- 
menting in a footnote, and on this he supports the 
following sentences in the text: — 

Earth has no privilege equal to that of being a member 
of His Church; and they dishonor both it and Him who 
extenuate the dismal horrors of that outer darkness in 
which souls lie that are aliens from the Church. The 
greatness of our privilege, and, therefore, of the glory of 
the Sacraments, is necessarily diminished by anything that 
makes less of the unutterable miseries, and most appalling 
difficulties of salvation outside the Church. This is the 
reason why the Saints have ever been so strong in the in- 

i« TAe Love of Cfod, Bk. X., a 2. 



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366 18 AN ACT OF CONTRITION DIFFICULT f 

stincts of their sanctity, as to the wide, weltering, almost 
hopeless deluge which covers the ruined earth outside the 
ark. Harsh, to unintelligent, uncharitable kindness, intol- 
erably harsh, as are the judgments of stem theology, the 
saints have ever felt and spoken more strongly and more 
peremptorily than the theologians.^* 

The judgments of stem theology without doubt 
may sometimes appear harsh^ especially to unintelli- 
gent and uncharitable kindness. But, before teach- 
ing that any particular doctrine which has the ap- 
pearaiM^e even of harshness is a judgment of stem 
theology we should make sure of the fact Unless we 
do this we shall be in danger of dishonoring Ood and 
hindering the salvation of souls by mistaking an 
opinion for the truth. The troth cannot diminish 
the glory of the sacraments nor the value of the priv- 
ilege of belonging to the True Church. It is a truth 
that God seriously desires the salvation of all men, 
and that, therefore, He has provided sufficient means 
for all men to be saved. It is a truth that no one is 
lost except by his own fault. Contrition and perfect 
charity are the only means of salvation for such as 
cannot receive the sacraments. The dismal lot of 
those outside the Church should never be extenuated, 
but we must never forget that all those who are lost 
are lost because they would not make use of their 
free will to be saved, not because God has not pro- 
vided sufficient and superabundant means of salva- 
tion for all. Copiosa apud eum redemptio. 

It would hardly be just to the memory of Father 
Faber to leave the reader under the impression that 

IS TAe Blessed Sacrament, Bk. IV., a 6. 



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18 AN ACT OF CONTRITION DIFFICVLTt 367 

the above extract expresses his settled conyiction on 
the matter. It is true that I do not remember any 
passage in his writings which expressly contradicts 
the extract given above. But in All for Je^us he 
lays stress on the necessary connection between love 
and sorrow for sin in these words : — 

What I mean is this, that to sorrow over the sins of 
others is no far-fetched devotion^ or sabtle refinement of 
religions feeling; but that it follows inevitably upon the 
love of Qod. Where there is no such sorrow for sin, either 
in ourselves or others, there is no love of God ; and in pro- 
portion to the amount of love will the degree of sorrow be.^" 

In his Creator and Creature and elsewhere he treats 
of Ood's infinite love for us^ and of our obligation to 
love Him in return. He shows at lengthy with his 
usual eloquence and unction^ how this obligation 
may be fulfilled^ and he teaches that its fulfilment is 
easy. He says: — 

Every creature was created by God for God's own sake. 
Hence he has nothing to do but God's work, nothing to 
seek but God's glory; and that work and that glory God 
has been pleased to repose in love, in the easy service of a 
rational and yet supernatural love.^^ 

I think that these passages show that the real 
Father Faber was not opposed to my contention^ that 
it is not difficult to make an act of perfect contrition 
or of the pure love of God. 

i« Op. oit,^ p. 68. 17 Op. cit^ Bk. II., a 8 



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XXI 

REPETITION OF EXTREME UNCTION 

Few of those who have devoted any attention to 
the matter will differ from the main conclusion at 
which Dr. Toner arrived in his article on this sub- 
ject in the April number of the Theological Quar- 
terly. That conclusion was that it is a solidly prob- 
able opinion that Extreme Unction may be validly 
repeated on the same person in the same sickness even 
though there hati been no change in the state of the 
sickness. Dr. Toner, of course, admitted that such 
a proceeding would be contrary to present discipline. 
But present discipline, he maintains, defers to the 
common opinion among theologians that Extreme 
Unction cannot be validly administered to a sick per- 
son as long as he remains in the same state of sick- 
ness. Some would seem to look forward to a change 
of discipline in this matter if only the common opin- 
ion can be dislodged. 

I think something may be said concerning this sup- 
posed common opinion and concerning the desirabil- 
ity of a change of discipline, and so I will accept Dr. 
Toner's courteous invitation to discuss these two 
points in the following article. 

I do not think that, at any rate since the time of 
Benedict XIV, it can be said that the common opin- 
ion of theologians has been against the validity of a 

368 



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REPETITION OF EXTREME UNCTION 369 

repetition of Extreme Unction in the same state of 
the same sickness. There <?an hardly be question 
about the opinion of Benedict XIV himself. Cata- 
lanus dedicated his commentaries on the Roman 
Bitual to him. With rather fulsome flattery he says 
in the Dedicatory Epistle that he has altogether 
neglected the Casuists^ who, he asserts, have for the 
most part done no little injury to Christian discipline 
and morality by their lax, foolish, and erroneous opin- 
ions about the sacraments and their administration. 
He professes to have derived much of his information 
from the synodal Acts of St. Charles Borromeo and 
from what Benedict XIV himself has most wisely 
taught in his most renowned work, De Synodo Dio- 
ecesana. If we turn to his commentary on the rubric 
which prescribes that Extreme Unction should not be 
repeated in the same sickness unless it is protracted, 
so that after recovery the sick person falls again into 
the danger of death, we find that Catalanus has the 
following: — "An eodem morbo, eodemque infirmi- 
tatis statu durante, iterari Extrema Unctio possit, nee 
Tridentinum Concilium, nee ejus Catechismus de- 
terminarunt, quod id scirent pendere a disciplina, uti 
notavit Van Espen." So that, according to Cata- 
lanus, it is merely a question of discipline whether 
Extreme Unction should be repeated or not during 
the same dangerous state of the same sickness. If 
now we turn to the De Synodo of Catalanus' patron 
we there find that Benedict XIV had before his mind 
practically all the evidence on this question which 
we possess to-day. He says that there used to be a 
variety of opinions on the point. Some held in the 



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370 REPETITION OF EXTREME VNOTION 

eleventh and twelfth centuries that Extreme Unction 
can only be received once lawfully in a lifetime; 
others later on maintained that it could not lawfully 
be received oftener than once a year; while others 
held that it could be repeated often in the same sick- 
nesSy and that in early times it was repeated on seven 
successive days. Then the learned Pontiff adds: — 
"Sed vsus postea ab universa Ecclesia receptus, a 
theologis communi calculo approbatus, et Synodorum 
ac Bitualium auctoritate roboratus, obtinuit, ut semel 
dumtaxaty in eadem infirmitate Extrema Unctio ad- 
hibeatur: una siquidem necessarias suppeditat vires 
ad ilia incommoda evitanda, quse morbus affert quo 
actu aeger laborat. . . . Durante autem eadem infirm- 
itate^ si post susceptam Extremam Unctionem mor- 
bus ita remittat ut segrotus mortis periculum evasisse 
videatur^ sed antequam convalescat iterum in vitsB 
discrimen relabatur, etiam juxta prwsentem dis- 
dplinam poterit absque scrupulo denuo sacra Unc- 
tione muniri; , . . uti videre est apud citatum Van 
Espen^ qui non inopportune Parochos monct ne nim- 
ium scrupulose in hoc se gerant; sed si dubitent an 
revera morbi status sit mutatus^ sen num idem vel 
diversum sit vitae periculum in quo segrotus versatur, 
expedire ait ut ad Sacramenti iterationem propen- 
deant, eo quod haec iteratio conformior sit veteri Ec- 
clesise consuetudini^ et per eam novum spirituale sub- 
sidium et levamen infirmo obveniat." ^ Although in 
these passages Benedict XIV does not expressly say 
that Extreme Unction can be repeated validly dur- 
ing the continuance of the same danger in the same 
iWd. VIII.. c. 8,n. 4. 



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REPETITION OF EXTREME UNCTION 371 

sickness^ it is plain that he regards the whole ques- 
tion as one of mere discipline, as Catalanus expressly 
says that it is. He attributes the present rule on the 
subject to the tisus ab universa Ecclesia receptiis; he 
refers to it as jiiwta prwsentem disciplinam; and he 
approves of the advice of Van Espen to parish priests 
that they should not be too scrupulous about repeat- 
ing Extreme Unction. In case of doubt, he says, 
whether the state of the sickness has changed or re- 
mains the same, or whether the danger of death is 
different or not, it is well to lean to a repetition of 
the sacrament, because such a repetition is more in 
keeping with the ancient practice of the Church, and 
thereby new spiritual help and consolation is given 
to the sick person. It is to be observed that Benedict 
XIV could hardly have written in this way if he had 
thought that the opinion was even probable that Ex- 
treme Unction cannot validly be administered during 
the same state of the same sickness. For such an 
opinion would touch the valid administration of a 
sacrament, and we may not, except in case of neces- 
sity of which there can be no question here, use a 
merely probable opinion concerning the validity of a 
sacrament. What we read in Dr. Heiner's recently 
published Opera inedita of Benedict XIV throws ad- 
ditional light on the Pontiff's opinion on this ques- 
tion. Referring to the Greek practice, according to 
which several priests together administer Extreme 
Unction, he says : — " Conosciamo che imbevuti i Teo- 
logi Latini della massima di non ripetere nella stessa 
malattia I'Estrema Unzione, vedono mal volentieri 
che i Sacerdoti chiamati per amministrare quel Sac- 



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372 REPETITION OF EXTREME UNCTION 

ramento, ungono uno dopo I'altro ciaschedon membro 
che deve ungersi, proferendo ciaschedun d^essi nell' 
ungere le parole della forma, yalntando cio per con- 
trario al loro sistema, e come una vera piu volte 
ripetita amministrazione dell' Estrema Unzione. Ma 
per andare al riparo di questo, che credono grave in- 
conveniente," &e.^ It is clear, I think, from this ex- 
tract that Benedict XIV himself did not think much 
of the difficulty felt by many theologians about the 
repetition of the sacrament of Extreme Unction. 
This conviction will be strengthened if we quote here 
the words of Van Espen to which Benedict XIV re- 
fers. Van Espen says : — " In his itaque unusquisque 
Ecclesise suae legem et consuetudinem sequi debet; 
alias si disciplina non obstaret, absurdum non esset, 
pluries in eadem etiam infirmitate eodemque inflrmi- 
tatis statu, hoc sacramentum juxta antiquum Ec- 
clesiflB Latinae et hodiemum Qraecorum morem con- 
ferre. ... Ex his discat parochus, ab iteratione hu- 
jus sacramenti se non debere scrupulose abstinere 
ob periculum nullitatis sacramenti ; sed duntaxat, ne 
in disciplinam jam stabilitam impingat: adeoque si 
dubium sit, num forsan morbi status ita fuerit mu- 
tatus, ut etiam juxta modemam disciplinam reiterari 
queat, magis pro reiteratione inclinandum; eo quod 
haec reiteratio conformior sit veteri Ecclesiae con- 
suetudini, tum quod per eam novum ipsi inflrmo sub- 
sidium spirituale sperari possit."^ There we have 
the definite reason assigned why a parish priest need 
not be scrupulous about repeating this sacrament 

2 Page 867. 

» De Estrema UnctUme, c. III., nn. 39, 40. 



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BBPETITION OF EXTREME UNCTION 373 

when he is in doubt whether the sick man is in the 
same danger of death ; it is merely a question of dis- 
cipline^ there is no doubt about the validity of the 
sacrament 

The theologians who have written on Extreme Unc- 
tion since the time of Benedict XIV have for the most 
part been content to quote his doctrine on the ques- 
tion before us. Many of them like Sardagna and 
Voit merely synopsize the Pope's teaching. Very 
few of them, as far as I have seen, face the question 
whether a repetition of Extreme Unction in the 
same danger of death would be valid or not. They 
say that it cannot be repeated in the same state of 
the same sickness, and quote the Council of Trent and 
the Ritual in proof of this doctrine, but they do not 
as a rule discuss the question whether such a repeti- 
tion would be invalid as well as unlawful. Still the 
great majority imply at least that it is only a ques- 
tion of discipline. St. Alphonsus may be taken as the 
representative of the moralists. He quotes the doc- 
trine of Benedict XIV given above, and then explains 
it by saying that there must be a positive doubt, or a 
probable opinion, that the sick person is in a new 
danger of death before Extreme Unction can be re- 
peated, otherwise, he says, in mere negative doubt the 
precept of Trent must be observed. These words 
show that St. Alphonsus understood the question of 
the iteration of this sacrament to be merely discip- 
linary, and that there could be no question about the 
validity of the sacrament, as otherwise it would not 
be lawful to follow a probable opinion concerning its 
administration. 



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374 RBPBTITION OF BXTRBMB UNCTION 

The Wirceburgenses, whom we may take as repre- 
sentatives of the dogmatic theologians of the latter 
half of the eighteenth century^ teach that Extreme 
Unction is one of the sacraments which may be re- 
peated since it does not impress a character on the 
soul. They mention the fact that formerly this sac- 
rament was repeated during the same dangerous state 
of the same illness^ but in the words of Benedict XIV 
they add that for many centuries the practice of the 
Church has been that it should only be administered 
once during the same danger of death arising from 
the same sickness. 

C!ollet, who wrote about the same time as the 
Wirceburgenses, says: — "Unctio pluries conferri 
valet. Quin et olim in eodem morbo iterabatur; quod 
hodie fieri prohibitum est, nisi 8Bgritudo physice vel 
moraliter diversa sit.''* 

Billuart, a few years earlier, wrote: — ^**Quidquid 
sit de consuetudine qu8B dicitur olim apud aliquos in- 
valuisse pluries iterandi unctiones in eodem inflrmi- 
tatis statu • • . certum est nunc non licere." Tom. 
xix., p. 61. 

Renter says: — "In eodem tamen morbo et statu 
ssepius per se loquendo suscipere non licet; secus in 
diversis.'* Pt. IV., Tract, vi., q. 3. 

All these are among the best and most representa- 
tive theologians of the latter half of the eighteenth 
century; th^ were in common use in the nineteenth 
as they are still in the twentieth. It can hardly be 
said, I think, that the facts brought to light by the 
great historical theologians of the seventeenth and 

4 De Bmtrema Vndkme^ n. 20. 



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REPETITION OF EXTREME UNCTION 375 

eighteenth centuries abont the administration of Ex- 
treme Unction fell into oblivion during the latter half 
of the eighteenth and the beginning of the nineteenth 
century. There are, indeed, two or three theologians 
of this period who teach that the repetition of Ex- 
treme Unction in the same danger of death is in- 
valid. Sasserath is one of these, who says: — 
^^Eodem autem mortis periculo perseverante etiam 
invalide iteratur, ut cum aliquibus tenet Bosco."*^ 

But neither Sasserath nor Bosco are in the front 
rank of theologians. 

In the period before the time of Benedict XIV 
there were more theologians of note who taught that 
during the same danger of death Extreme Unction 
cannot be repeated validly. Among these are La 
Croix, Q. Hurtado, Sporer, and Herincx, and the three 
last assert that this was the common opinion of Doc- 
tors. The words of Benedict XIV, which were 
quoted above, indicate the same, and so we may al- 
low that before the time of Benedict XIV the view 
was commonly accepted that this sacrament cannot 
validly be repeated in the same danger of death. 
Most of the theologians of this period whom I have 
consulted do not expressly teach either one view or 
the other. Suarez, for example, says : — " Hinc ergo 
fit [quia non imprimit characterem] ut sacramentum 
hoc simpliciter et absolute sit iterabile . . . secun- 
dum quid sen durante ejusdem morbi necessitate 
sacramentum hoc non posse iterari.^' ^ 

How unsafe it would be to conclude from these 

9De Bwtrema Unotione, n. 12. 
• Dlsp. 40, sec. 5. 



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876 REPETITION OF EXTREME VNOTION 

last words that Suarez held that Extreme Unction 
cannot be repeated validly in the same danger is 
shown by what Arriaga wrote a little later. He 
uses the same words as Suarez — ^^^ Durante eodem 
periculo vit» non posse iterari^' — but he adds: — 
"Ubi adhuc nova quaestio esse potest, An ita non 
possit bis dari intra idem periculum ut id sit solum 
illicitum; an vero ita ut sit etiam invalidum, sen 
irritum sacramentum, ex defectu capacitatis in sub- 
jecto. Bespondeo, rem esse omnino incertam, quia de 
hoc puncto nihil Concilia definierunt." ^ He thinks, 
however, that if the question could be settled by the 
practice of the Church, we should have to conclude 
that a repetition of this sacrament in the same dan- 
ger of death would be invalid. 

If, however, we go back to the eleventh and twelfth 
centuries we shall find ourselves confronted with 
two opposite opinions and practices on the point at 
issue. One maintained that Extreme Unction could 
not be administered twice to the same person, any 
more than the anointing in Baptism, or the priest- 
hood, or the consecration of a church or chalice could 
be repeated. The other, apparently much more com- 
mon than the first, simply and without distinc- 
tion, held that Extreme Unction was of the number 
of the sacraments that could be repeated. Peter 
Lombard held this view. His words are : — 

" Sacramentum vero altaris, et poenitenti© et con- 
jugii ssepe iterari videntur, quia ssepe sacramentum 
corporis suscipitur, frequenter poenitentia agitur, 
conjugium ssepe contrahitur. Quare ergo unctio 

T De Ewtrema Unctione, disp. 53, n. 47. 



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REPETITIOUS OF EXTREME UNCTION 377 

similiter non potest iterari? Si morbus non reverti- 
tur, medicina non iteretur. Si vero morbus non 
potest cohiberi, quare medicina debet prohiberi? 
Sicut oratio iterari potest, ita et unctio iterari posse 
videtur: utraque enim illie commemorat Jacobus, et 
utrumque alteri cooperatur ad conferendam allevia- 
tionem corporis et animse. Cur ergo negatur unc- 
tionem super infirmum posse iterari, ad impetrandam 
saepius sanitatem mentis et corporis, cum propter in- 
firmitatem eadem saepe iteranda sit oratio? . . . Si 
vero ad susceptionem sacramenti: de quibusdam ye- 
rum est, quod non iterantur crebra susceptione, de 
aliis vero quibusdam non : quia frequenter sumuntur, 
ut hoc unctionis sacramentum quod in omni pene 
Ecclesia saepe repetitur."® 

His argument, therefore, is that doses of medicine 
are repeated until either the disease is conquered or 
it conquers the patient ; prayer for health is repeated, 
why should not the unction also be repeated. The 
holy oil indeed is not consecrated twice, but as the 
same subject can repeatedly receive Penance, and 
the Eucharist, so this sacrament of Extreme Unction 
can be often received, and in fact in almost all the 
Churches it is frequently repeated. 

Albert the Great, seeking to apply the well-known 
rule of law, discovered a distinction by means of 
which he reconciled the two opposite opinions. 
" Dicendum," he says, " quod hoc sacramentum sicut 
cetera quaedam iteratur, si causa eorum iteratur: 
sicut expresse dicit Augustinus in litera. Si morbus 
non revertitur, medicina non iteretur. Si vero mor- 

8Li6. IV., dlst23. 



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378 REPETITION OF EXTREME UNCTION 

bus non potest cohiberi, quare medicina debet pro- 
hiberi? Ad primum ergo dicendum, quod non fit in- 
juria Sacramento, quando iteratur super idem sub- 
jectum, sed quando iteratur super eandem causam 
numero : unde ilia sacramenta quse habent causas 
suas immobiles non iterantur, ut baptismus quia 
originale nunquam redit, et ^onflrmatio, quia debili- 
tas ex fomite nunquam redit. Similiter privatio po- 
testatis Ecclesiasticae nunquam redit in eo qui sus- 
cipit ordinem: et ideo ilia nunquam iterantur. 
Qusedam autem habent causas mobiles super idem 
subjectum; et ideo in eodem homine iterantur, licet 
non eadem de causa. Et per banc solutionem patet 
qualiter concordandae sunt ambsB opiniones qu» 
recitantur in litera, et patet solutio ad ultimum.''* 

To the difficulty about prolonged sickness where 
the cause seems to be always numerically the same, 
and, therefore, according to his distinction the sacra- 
ment should not be repeated, Albert, not without seri- 
ous doubts and misgivings, applies a physical theory 
of the time. The four humors of the human body 
were thought to undergo a change during the prog- 
ress of the four seasons, and so after a year's interval 
the sickness could not be the same. Extreme Unc- 
tion, therefore, might be repeated after a year's in- 
terval. Later theologians have sometimes laughed 
at Albert's application of physics, as he understood 
the science, to theology. Too many of them have 
failed to learn caution from his example, and like him 
they have tried to solve theological questions by the 
application of the philosophical or physical theories 

• In 4 Lib., Sent, XXIII., art 20. 



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REPETITION OP EXTREME UNCTION 379 

of their time. Almost up to the period of the Coun- 
cil of Trent many local synods in France and in Eng- 
land applied Blessed Albert's rule in practice and 
forbade the administration of Extreme Unction to the 
same person oftener than once a year. St. Thomas, 
the great disciple of Albert, saw what was sound in 
the distinction of his master and put it in a truer 
light. He teaches that this sacrament may be re- 
peated inasmuch as it does not produce an effect 
which is perpetual. This may be done even in the 
same sickness when the danger of death ceases and 
returns again. 

^^ Bespondeo dicendum quod hoc sacramentum non 
respicit tantum inflrmitatem, sed etiam infirmitatis 
statum: quia non debet dari nisi infirmis qui secun- 
dum humanam sestimationem videntur morti ap- 
propinquare. Qusedam autem inflrmitates non sunt 
diuturnse : unde si in eis datur hoc sacramentum tunc 
quando homo ad statum ilium pervenit quod sit in 
periculo mortis, non recedit a statu illo nisi in- 
firmitate curata : et ita non debet iterum inungi. Sed 
si recidivum patiatur, erit alia infirmitas; et poterit 
fieri, alia inunctio. Qusedam vero sunt segritudines 
diutumse, ut hectica, hydropisis, et hu jusmodi : et in 
talibus non debet fieri unctio nisi quando videntur 
perducere ad periculum mortis : et si homo ilium ar- 
ticulum evadat, eadem infirmitate durante, et itenjm 
ad similem statum per illam segritudinem reducatur, 
iterum potest inungi, quia jam quasi est alius in- 
firmitatis status, quamvis non sit alia infirmitas sim- 
pliciter." ^^ 

10 Sumtna theoh Supplementum, q. 88, a. 2. 



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380 REPETITION OF EXTREME VNCTION 

St. Bonaventure agrees with St. Thomas on this 
question. The teaching of St. Thomas and St. Bona- 
venture became the common doctrine of the schools, 
and it was adopted by the Council of Trent and the 
Roman Ritual. It is not a mere compromise between 
two opposite views. It is grounded on the nature 
and effects of the sacrament with which it deals. 
For Extreme Unction is a sacrament instituted for 
the benefit of those who are dangerously ill, of those 
who are in danger of death from sickness. So that 
it produces its effects whenever the recipient of it is 
reasonably presumed to be in danger of death. 
Those effects are many and various ; Extreme Unction 
infuses sanctifying grace into the soul, it removes the 
remains of sin, it forgives venial sin and sometimes 
even mortal sin, it cheers, soothes, consoles the sick 
person, and if God sees good it restores him to bodily 
health. The effects which are peculiar to this sacra- 
ment are the cheering, soothing, consoling of the sick 
person, and at times the restoration of his bodily 
health. The other effects are common to other sacra- 
ments, and more properly belong to them, especially 
to Penance, of which Extreme Unction is the com- 
plement If remission of sin or an increase of sanc- 
tifying grace is desired, it will be better for the sick 
person to go to confession or receive holy com- 
munion again. There is no necessity for him to re- 
ceive Extreme Unction again in the same danger of 
death in order to obtain the special fruits of this 
sacrament. The reason is because those special 
fruits are in the nature of actual graces and favors 
which are not necessarily given immediately on re- 



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REPETITION OF EXTREME UNCTION 381 

ceiving this sacrament, but the reception of the sacra- 
ment gives the recipient the right to receive them at 
suitable times daring his sickness. As long as the 
same danger lasts the sacrament once received gives 
him a title to receive its special effects; a repetition 
of the sacrament could not do more for him in this 
respect This does not prove that a repetition of Ex- 
treme Unction in the same danger would be invalid, 
but it does show that it is not necessary. Indeed 
Extreme Unction is not a necessary means of salva- 
tion at all, nor is its reception by the sick a matter 
of precept; but the above argument shows that its 
repetition is not even necessary in order to procure 
its special effects during the same dangerous state 
of illness, and its other effects can be more satisfac- 
torily obtained in other ways. 

The doctrine which has just been laid down does 
not, I think, differ in substance from that of Richard 
Middleton (Mediavilla), the celebrated Minorite of 
the thirteenth century. In his commentary on the 
Sentences he says : — 

^^Bespondeo quod hoc sacramentum aliquo modo 
iterabile est, aliquo modo non. Circa enim eundem 
inflrmum eadem infirmitate in numero respectu ejus- 
dem infirmitatis status iterari non debet. Quia 
quodlibet sacramentum circa materiam propriam una 
vice sortitur totum suum effectum si non sit indis- 
positio in suscipiente. Et ideo eadem hostia bis non 
consecratur quia in prima consecratione efficitur cor- 
pus Christi verum sub una specie, nee idem conjuges 
bis desponsantur. De baptismo, confirmatione, or- 
dine clarum est In solo sacramento poenitenti® 



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882 RBPBTITION OF SXTRBMB VNOTION 

dubium est qaandoquidem respectu eorumdem pec- 
catorum in nnmero iterattun qualibet vke haberet 
aliquem effectum. Quia tamen idem homo in numero 
potest plnries infirmani et in eadem infirmitate in 
numero possunt esse status divecsi in quorum quo- 
libet infirmus est in notabili et probabili periculo mor- 
tSSy ideo cum inflrmo nullum imprimat indelebilem 
effectum potest et debet eidem homini pluries con- 
ferri vel pro diversis infirmitatibus vel pro ejusdem 
inflrmitatis diversis statibus supradictis. Nee te 
moveat quod dictum est sacramentum Eucharistise 
una vice circa eamdem materiam totum suum sortiri 
effectum, quia ab eodem homine est pluries suscipen- 
dum. In ejus enim susceptione non consistit illius 
sacramenti essentia, et ideo quamvis pluries suscipia- 
tur et in eodem suscipiente pluries habeat effectum 
tamen essentia sacramenti circa eamdem materiam 
non iteratur, et iteratum non haberet effectum. . . . 
Et quia circa eundem infirmum eadem infirmitate 
respectu erjusdem inflrmitatis status hoc sacramen- 
tum totum suum sortitur effectum si non sit aliquis 
defectus ex parte suscipientis ideo hoc modo non 
iteratur/' " 

This, then, is the doctrine on which the modem 
discipline regarding the repetition of Extreme Unc- 
tion is grounded. It would seem to show that no 
change in that discipline is desirable, and if taken 
together with certain other reasons it will, I think, 
explain why the historical investigations of such men 
as Launoi, Van Espen, and others brought about no 

ti In Lib. IV., dl8t 28, a. 2, q. 6. 



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BBPBTITION OP SXTRSMB UNOTIOV 388 

change of discipline in the administration of Ex- 
treme Unction. 

For it is not difficult to discover the reasons why 
Extreme Unction was administered less frequently 
than perhaps it might have been during the Middle 
Ages. Sometimes bishops forbade its too frequent 
reception in the same sickness lest it should come to 
be held in too little esteem and reverence. Thus 
Stephen Poucher^ Archbishop of Sens^ issued the 
following decree in 1514 : — 

^^Cavere debent sacerdotes^ ne aliquis infirmus 
saepius inungatur in eadem infirmitate, ne sacramen- 
tum istud vilescat; potest tamen iterari hoc sacra- 
mentum in diversis infirmitatibus vel in eadem re- 
cidiva, quia non habet effectum perpetuum, eo quod 
sanitas mentis et corporis qu» sunt ejus effectus, 
reiterari possunt, et amitti, et recuperari.^^ 

A similar decree couched in the same words was 
issued by Louis^ Bishop of Chartres^ in 1524^ and the 
authority of the Holy Fathers was claimed for it — 
Juxta sa/nctorum Patrum decreta}'^ 

This reason for not repeating Extreme Unction is 
not without its weight still. The Church even now 
forbids holy communion oftener than once a day, 
and some priests think that in some places the sacra- 
ment of Penance is beginning to lose something of 
its efficacy as a remedy against sin from its too fre- 
quent repetition without due preparation. Besides^ 
it is only right that the priest should be considered. 
In populous districts, where each priest not unfre- 

12 Launoi, De Boorom. TJnctUmU^ I., p. 562. 



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384 REPETITION OP EXTREME UNCTION 

quently has two or three thousand souls to look af ter^ 
there may easily be half a dozen who are in danger 
of death at the same time. Even under modern dis- 
cipline the administration of the last sacraments to 
the sick makes a serious demand on the time of the 
overburdened priest What would be the case if each 
sick person demanded Extreme Unction every day? 

Another reason why Extreme Unction came to be 
administered less frequently than it might have been 
was the avarice of the clergy. Benedict XIV con- 
jectured that this was the reason why the ancient cus- 
tom of employing several priests in its administra- 
tion fell into desuetude. Each priest required his 
fee, and the poor began to speak of Extreme Unc- 
tion as the sacrament of the rich. It was doubtless 
on this ground that we find many English synods 
prescribing that this sacrament should be adminis- 
tered without fee by the parish priest Thus, among 
the decrees of the Synod of Exeter held under Peter 
Quivil in the year 1287, we read the following: — 

"Qui si difflciles se exhibuerint in hac parte, et 
infirmis poenitentibus et petentibus gratis absque 
uUa exactione pecuniae sacramentum hoc non con- 
tulerint cum gratia sit gratis data et non pretio con- 
f erenda, convicti super hoc, juxta canonicas sanctiones 
punientur condigne." ^* 

Other councils made similar provisions, as that 
held at Durham about the year 1220, and another held 
a little later in Scotland.^* 

In our days Extreme Unction is administered with- 

18 Wilklns, Concilia, II., p. 135. 
14 Wilklns, I., pp. 583, 615. 



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REPETITION OF EXTREME UNCTION 385 

out fee, and so, perhaps, there would not be much 
danger on this head if it were more frequently re- 
ceived. Still the means which have been found use- 
ful in other ages for the suppression of abuses may 
sometimes be retained as the best means of prevent- 
ing their coming back to life. 

But the chief reason for not repeating Extreme 
Unction more frequently seems to have been the re- 
pugnance of the people themselves. Even nowadays 
we come across instances of this strange repugnance 
to receive the sacrament of healing and consolation. 
I could mention instances of this feeling which have 
occurred within my own recollection, not only among 
the poor and ignorant but also among the well-to-do 
and educated. The synods of the Middle Ages men- 
tion several curious superstitions connected with this 
feeling, which it required all the authority of the 
Church to correct. Thus Walter of Cantilupe, 
Bishop of Worcester, held a synod in 1240 and made 
the following decree among others : — 

" Sunt autem quidam, ut audivimus, qui post per- 
ceptionem hujusmodi sacramenti, sanitati pristinsB 
restituti nefas reputant, vel uxores suas cognoscere, 
vel carnes comedere, vel etiam aliqua ratione nudis 
pedibus ambulare. Horum autem errorem, utpote 
doctrinae sanae contrarium, execramur, et eos com- 
municationibus, et monitionibus duximus corrigen- 
dos, quia ferro abscindenda sunt vulnera, quae fo- 
menta non capiunt, ecclesiastica coercione, si ne- 
cesse fuerit, praecipimus per sacerdotes eorum ab his 
erroribus revocari. Quidam etiam in tantum abhor- 
rent hoc percipere sacramentum, quod hoc sibi vix in 



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386 REPETITION OP EXTREME UNCTION 

solo mortis articalo sustinent exhiberi ; propter quod 
forsan accidit quod ejus expertes plurimi ab hac luce 
subtrahuntur. Contra hunc igitup errorem cum 
aliiSy eos per sacerdotes suos et prsedicatores alios, 
crebris exhortationibus preecipimus praemuniri." ^^ 

Mention is made of similar superstitions in many 
synods held both in England and in other countries, 
so that they were widespread and difficult to eradi- 
cate.^® This strange repugnance of the people 
against the reception of Extreme Unction, together 
with the doctrine of Albertus Magnus, may have had 
its weight in inducing various synods and bishops in 
the Middle Ages to make laws prohibiting the recep- 
tion of this sacrament oftener than once a year. 
Launoi mentions nine diocesan rituals which con- 
tained such a prohibition, and to these we may add 
the Efynodal decree of Raynold, Archbishop of Canter- 
bury, in the early part of the fourteenth century, 
which Lyndwood, at the end of the next century, in- 
serted in his Provinciale and glossed. This shows 
that it was still in force at the eve of the Reformation 
in England. 

These decrees may, perhaps, be regarded as a com- 
promise between two extremes. They rightly insist 
on the doctrine that Extreme Unction may be re- 
peated, but they prescribe that it should not be re- 
peated in favor of the same person in the same sick- 
ness oftener than once a year. It seems to me, then, 
that if we bear in mind the special effects of Extreme 
Unction and the experience of the past, we shall not 

" Wllklns, I., p. 670. 

" CA WUklns, I., pp. 688, 615 ; II., p. 185. 



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REPETITION OF EXTREME UVCTION 387 

be tempted to try to change the modern discipline of 
the Church on this subject. While admitting that 
the repetition of this sacrament is, to a large extent, 
a question of discipline, which might be changed, we 
should, as it seems to me, be slow to interfere with 
the wise practice which has been universal at any 
rate since the time of the Council of Trent. 



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XXII 

A FOBGOTTEN THEOLOGIAN AND HIS 
THEORY OP MORALS 

Dr. Richard Hall, Cambridge University 

Some time ago while looking over the shelves of 
the library my eye was caught by a venerable-looking 
quarto bound in limp parchment. Outside it bore 
the title in faded ink, Hallus: De Qmnquepartita 
Conscientia. I took the book to my room and soon 
became interested in it. In these days when the his- 
tory of moral theology is so frequently perverted to 
the prejudice of the Church, it may be worth while 
to give my readers some of the fruits which I gathered 
from a closer acquaintance with the rare old quarto. 
But first of all a word about its author. 

Dr. Richard Hall was a young student at Christ's 
College, Cambridge, in the reign of Queen Mary. He 
took his degree in the year 1556, and was elected a 
Fellow of Pembroke Hall. He was held in general 
esteem, and his ability and upright character seemed 
to insure him a useful and honorable career in life. 
However, before he took his degree of Master of Arts, 
Queen Mary died, and Elizabeth succeeded to the 
throne of England. The new Queen very soon made 
known what was to be her policy in religion, and 
young Hall, who was sincerely attached to the Cath- 

388 



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A FORGOTTEN THEOLOGIAN 389 

olic faith, followed the example of many more 
English Catholics of the time and retired to the con- 
tinent in search of the liberty of conscience denied to 
him at home. He first went to Belgium and thence 
to Bome, where he finished his theological studies 
afid took the degree of Doctor of Divinity. He then 
returned to Belgium and was given the post of Pro- 
fessor of Morals in the Benedictine monastery of St. 
Rictrude at Marchiennes not far from Douay. 

Before long the disturbed state of Belgium at the 
time compelled Dr. Hall to retire to Douay, where 
the English College for the education of priests 
destined for the work of preserving the ancient faith 
in England had just been founded by Dr. Allen. At 
Douay, Hall became professor of Holy Scripture, and 
it was there that Pits, the author of De illustribus 
Angliae ScriptoHhiM, made his acquaintance about 
the year 1580. Subsequently Hall was made canon 
of the cathedral church of St. Omer and official of 
the diocese. He died at St. Omer in the year 1604. 

Pits tells us that Dr. Hall's " piety, charity, affabil- 
ity, and varied erudition, caused him to be held in 
universal esteem.'^ Dodd, in his Church History of 
England, says that he was " an excellent casuist, and 
zealous promoter of Church discipline,'^ that "his 
writings and behavior were a continual curb to vice 
and the liberties of the age, and as he was an enemy 
to complaisance upon those occasions, so the severity 
of his morals met with some opposition even among 
the learned." * 

The Dictionary of National Biography testifies 

1 Vol II., p. 70. 



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390 ^ FORGOTTEN THEOLOGIAN 

that ^^he was a severe and uncompromising moral- 
ist." 

While engaged in teaching casuistry to the brethren 
of St Rictrude Dr. Hall collected the material which 
he afterwards used in the composition of his chief 
work De Quinquepartita Conscientia. He tells us in 
the Dedicatory Epistle prefixed to this work that the 
general custom was for the professor of casuistry to 
begin at once with the discussion of cases of con* 
science. Hall desired to lay the foundations a little 
deeper, and began with an elaborate treatise on Con- 
science, for the matter of which he confesses that he 
was much indebted to the Dominican, John Nider, 
who wrote his book, CoMolatio PusillaninUum, about 
the middle of the fifteenth century. Many years* «c- 
perience in hearing confessions confirmed him in his 
estimate of the importance of the treatise on Con- 
science, and when he was now an old man he devoted 
the leisure moments which his duties as official of 
the diocese left him, to the composition of his work. 
He dedicated it to the Archbishop of Cambrai, a prel- 
ate who was zealous for the reformation of morals 
and the restoration of ecclesiastical discipline. To 
show the lofty aim which Dr. Hall proposed to him- 
self in publishing his work and as a specimen of his 
manner, we may quote the following passage from the 
Dedicatory Epistle: 

For when once men's consciences have been put right, 
and that Augean stable has been cleansed, it will be very 
easy to establish that external discipline which all good 
men desire and long for. To achieve this purpose in the 



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A FORQOTTEV THEOLOGIAN 891 

first place pious and good men must everywhere be ap- 
pointed pastors and confessors who will teach others by 
word and example and who will not like hirelings only 
feed themselves, and seek after their own gain and advan« 
tage; but who will seek Ood's honor alone and the salva* 
tion of souls. From such o£Bces those must be excluded 
who are addicted to gluttony and other fleshly vices, as 
weU as the ambitious and the avaricious. When the tri- 
bunal of conscience has been put right, the next step will 
be the external forum, where judges and magistrates must 
be appointed who are not only upright and incorrupt so 
as not to be turned aside a hair's breadth from the path of 
duty by hatred or affection, fear, or hdpe of reward; but 
who are as far as possible removed from aU striving after 
popularity and notoriety. Because if they are Thasos 
there will never be wanting Qnathos who will so distort 
and blind their judgment with their flattery that they will 
hardly be able to distinguish good from evil. A very good 
example of this is furnished by Henry VIII of England 
who held flatterers in high favor and esteem. Once on his 
return from a battle in which he had been victorious, and 
which was fought in defense of the Holy See against those 
who desired to weaken its authority, he met one of the 
English bishops who had come to congratulate him on his 
victory. *'Are we not much beholden. Reverend Father in 
Ood," said the King, ''to the divine goodness for the glori- 
ous victory which we have gained over the enemy!" The 
bishop knew the vainglorious character of the king, and 
he answered: ''Nay, most serene King, Almighty Ck>d 
owes much to your Majesty since you have fought so well 
for His glory and the authority of the Holy See." The 
king was not a little puffed up by the bishop's words, and 
conceiving too high an opinion of himself he not long after- 
wards fell away from the Holy See and from the Faith 
which he had defended before with his pen and with the 
sword. 



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592 A FORGOTTEN TBBOLOCflAV 

Dr. HalPs book, the fruit of long years of study and 
practical experience, was published at Douay in 1598. 
The date of publication is of special interest. The 
book was an elaborate treatise on Conscience, written 
by a learned and experienced Englishman, a confes- 
sor for the Faith, a man of lofty character, somewhat 
austere even and stem in disposition. Twenty-one 
years before the publication of Hall's book Bar- 
tholomew Medina, O.P., had issued his celebrated 
EwpoHtio in Primam Seoundae Angelid Doctaria D. 
Thomae Aquinatia. In this book the learned Domini- 
can had been the first to propound and defend 
Probabilism in the modem form. No theologian of 
Hie Society of Jesus, whose pet doctrine Probabilism 
is supposed to be, had as yet written at any length 
on the subject In 1599 Cardinal Toletus, S.J., 
issued his Instmctio Sacerdotum, and in the same 
year appeared the Commentaries of Gkibriel Vasques, 
fi.J., on the Prima Sectmdae of 8t. Thomas. Car- 
dinal Toletus approved of and used the theory, as 
two or three other Jesuits had already done, but 
Vasquez was the first Jesuit theologian who dis- 
cussed Probabilism at length and defended it From 
the historical point of view it may be of interest to 
inquire what was Dr. Hall's system of morals, and 
what was his attitude toward the theory of Medina. 
In this inquiry I propose to adhere strictly to the 
rdle of the historian. I shall not play the advocate; I 
shall strive to be as accurate and objective as possible ; 
and I shall let the texts and the facts speak for them- 
selves. As experience has taught me how little we 
can trust to what is commonly written on this sub- 



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A FORGOTTEN THEOLOGIAN 393 

ject, I will only use authorities whose doctrine I have 
studied at first-hand in their own works. 

Catholic theologians have always taught as a pri- 
mary rule of conduct that it is sinful to do anything 
which we are not morally sure is right To act in 
doubt whether our action is a good or bad one is to 
manifest a disposition to do it whether it be good or 
bad, and thereby sin is committed. It is a mortal 
sin to do what we think is mortal or what we doubt 
whether it be mortal or not. Hall insists upon this 
as do all theologians who discuss the point. "In 
practical doubt/' he says, " or in doubt about doing 
something in this place and time, or, as others say, 
here and now, when its lawfulness is supported by 
only probable reasons, it is the constant teaching of 
all theologians that as long as the conscience is in such 
uncertainty nothing may be done against this doubt, 
whether the doubt be equal on both sides, or unequal ; 
and whether there is greater danger on one side than 
on the other, or equal danger on both sides, for then 
the text of Wisdom is verified — ^ He who loves dan- 
ger shall perish in it;' and it is settled by the au- 
thority of all masters that he who exposes himself to 
the danger of committing mortal sin thereby sins 
mortally. The text of St. Paul is applicable here: 
'Whatever is not of faith is sin.' But what is not 
according to conscience is not of faith, nor is an action 
according to conscience — or a certain judgment con- 
cerning its lawfulness — when the conscience sways 
to both sides, hesitates which to choose, and to do 
what you are not sure whether it be lawful." * He 

« De Quinquepartita Consdentia, L. II., c. 2. 



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394 A FORQOTTElf THEOLOGIAN 

then quotes Origen and Theophylact who explain the 
text of St. Paul in this sense. The moral certainty of 
the lawfulness of an action which is required before 
performing it must not be taken in too absolute or 
metaphysical a sense. **It is not the result/^ says 
Hall, " of evident demonstration, but of probable con- 
jectures, which incline more to one side than the 
other.'^ 8 

We come to the special subject of this paper when 
we inquire what rules Hall followed to determine the 
choice of an opinion when Doctors disagree. He 
puts the crucial question on this point in the ninth 
chapter of the second book. He there asks whether 
it is lawful in morals to abandon an opinion which is 
more probable and follow one which is only probable. 
After giving one or two examples in which the ques- 
tion is of practical importance, and quoting the rea- 
sons of those who answer the question in the nega- 
tive, he says : 

But we who hope that timid consciences will derive some 
help from this little work, and who see that innumerable 
would be the diflSculties of pious souls if it were always 
necessary to inquire which opinion out of many is the 
more probable, nor could an issue be readily found since 
an opinion frequently seems more probable to some though 
it is not so in reality, — supported by the authority of great 
men we assert that it is sufficient to follow the probable 
opinion of some Doctor, so that we need not adopt those 
obscure arguments by which some maintain that the more 
probable opinion must be discovered and followed. For as 
that is a probable opinion in the schools and in disputa- 
tions which can be defended without incurring any note 

« Loo, oit, L. III., e. 14. 



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A FORGOTTEN THEOLOOIAN 395 

of error, so in practical matters that is probable which we 
can follow without sin or danger of sin. For a probable 
opinion is not so called because it can be supported by 
reasons drawn from either side, for in this sense many 
errors and heresies, such as that of Arius, have more 
numerous, and in appearance more probable arguments in 
their favor than have some truths held by Catholics. Bat 
a probable opinion is so called because it seems probable 
to one or more men of learning, or to those whose knowl- 
edge is specially known and approved. Since then this is 
agreeable to right reason and is confirmed by the judgment 
of learned men, why may we not follow it? Is it because 
the other opinion is more probable? But we are not al- 
ways bound to follow what in everything is more perfect, 
because it is sufiicient if a thing is perfect in its kind ; and 
since in the schools and in theory it is lawful to defend 
that which is probable, whiat hinders us from being able to 
follow that which is probable in practice and in action? 
And so this is lawful provided that the opinion which we 
judge to be probable is not evidently contrary to Holy 
Scripture or a decision of the Church, as St. Thomas says, 
and if one can by one's own knowledge or that of another 
who is worthy of confidence answer the reasons to the con- 
trary, or at least one sees that clever men despise them; 
for a good argument in practical matters is derived from 
the praiseworthy life and excellent doctrine of good and 
holy men. And indeed though there are some precepts 
which are common to and obvious to all, and of those no 
one who has the use of reason and free will can or ought 
to be ignorant, such as the precepts of the Decalogue which 
natural reason and Holy Scripture clearly manifest to us ; 
there are others which Holy Scripture and ecclesiastical 
decisions leave uncertain, as is the case with many con- 
tracts. No one should violate the former on account of 
the opinion of any Doctor whatever; but in the latter 
which are not yet settled by a decision of the Church we 
may follow the opinion of some Doctors against others. 



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396 ^ FORGOTTEN THEOLOGIAN 

provided that we are ready to stand by the judgment of 
the Churchy if she determine otherwise, make restitution 
if required, and in the meanwhile form for ourselves a 
good conscience in everything without hesitation or notable 
doubt to the contrary. 

In this passage Hall formally adopts the theory 
which Bartholomew Medina had formulated some 
twenty years earlier and which is known as Probabil- 
ism. In the extract which I have quoted he does not 
mention either Medina or any one else by name; he 
is content with saying in general terms that his doc- 
trine is supported by the authority of great men. 
However, he does mention Medina on the next page 
and in the same context, and by other frequent refer- 
ences to him Hall shows that he was largely indebted 
to him for his doctrine. He makes use too of the 
principal arguments by which. Medina proved his 
theory. In adopting this view he was clearly of the 
opinion that he was adopting no novelty, he was 
merely making use of a ready formula for what in 
substance had been taught by the older theologians. 
This comes out well in a passage which occurs in the 
sixteenth chapter of the third book on a Scrupulous 
Conscience. He there says: 

The scrupulous are often tortured at reading the chapter 
juverUs, de sponsaUbus, in which the saying occurs — ^**The 
safer way must be chosen when in doubt"; from which 
they think it follows that in everything that course must 
be chosen which is the furthest removed from all appear- 
ance of sin. But if this be granted them, nobody can ever 
be certain that in any of his actions he has played the part 
of an honest man, without being afraid that he could have 
done better. However, the answer to this is easy: it is 



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A FORGOTTEN THEOLOGIAN 397 

not necessary always to choose the safer way ; it is sufficient 
to choose that which is safe, as was said above when I was 
treating of a probable conscience in questions where Doc- 
tors differ. I there said that it is not necessary to follow 
the more probable opinion; it is sufficient to hold that 
which is probable when both are defended by approved 
authors. And Navarrus gives this advice as a special 
remedy against scruples, viz., to adopt one out of several 
opinions, choosing first of all in the external forum that 
which is confirmed by custom, unless it is clearly against 
the natural or divine law, for against these custom can do 
nothing. But if the matter be doubtful, custom can in- 
terpret it, and such interpretation is to be followed. If 
there is no such custom, that opinion should be preferred 
which rests on some text, and against which it is not ea^r 
to find ai^uments, though the common opinion may be on 
the other side, and that, although the chief question may 
be concerning one law and the text concerning another. 
Furthermore, that opinion among several should be chosen 
which rests on an argument which cannot easily be an- 
swered. And if none of these rules is applicable, the com- 
mon opinion should be chosen, that namely which is known 
for certain to be the common opinion; and if there is no 
ccnnmon opinion, that should be chosen which rests on bet- 
ter grounds and reasons, although they may be arguments 
which can be answered without difficulty because other 
things being equal a double or a triple cord is broken with 
greater difficulty. But where none of these rules applies, 
the more lenient and more favorable opinion is to be fol- 
lowed. The more lenient and the more favorable opinion is 
that which favors an oath, marriage, dower, will, freedom, 
a ward, widow, stranger, or other miserable person, or a 
private person against the exchequer, when the exchequer 
bases its action on the wrongdoing of a private person; 
otherwise the contrary holds. That opinion also is more 
lenient and more favorable which upholds the validity of 
the act, whether the act whose validity is in question be 



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398 A. FOROOTTEV THEOLOGIAN 

a last will, or a statement of claim, or a joining of the 
issue, or a sentence, or any judicial act, rescript, or privi- 
lege. For the presumption in favor of the act outweighs 
other considerations, although the validity of the act re- 
dounds to the advantage of the plaintiff, and to the disad- 
vantage of the State. With these exceptions that opinion 
is the more lenient which favors the defendant And if 
one opinion is better than another in none of these ways, 
that should be held which those Doctors affirm who excel 
in authority or knowledge in the matter in question, as 
theologians if the question belong to theology, canonists in 
canon law, legists in civil law; for in all these ways an 
opinion is probable although perhaps the contrary is some- 
times more probable. 

It is obvious that in thus quoting what Navarrus 
teaches about the various methods for choosing an 
opinion and forming one's conscience when Doctors 
disagree, Hall believed that he was merely putting 
his own theory in other words. " In all these ways,'' 
he says, ^^an opinion is probable although perhaps 
the contrary is sometimes more probable.'' * 

What Hall quotes from Navarrus is merely the 
common teaching of theologians on this question 
previous to the time of Medina. Angelus de Clavasio, 
O. P. M., who published the first edition of the 
Summa Angelica in 1486, teaches the same doctrine 
in almost identical terms, as also does Prierias, O. P., 
who issued the first edition of the Summa Sylvestrina 
in 1516. So that according to Dr. Hall the theory of 
Probabilism was no novelty; it was merely a short 
and convenient way of stating a theory which was 

« " Nam totidem modis opinio fit probabUis ; etsi fortassis altera 
sit interdum probabilior." 



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A FORQOTTBN THEOLOGIAN 399 

supported by the common consent of theologians of 
all schools. This was not an opinion peculiar to 
Hall; it was shared by all his contemporaries^ as is 
clear from the fact that Medina's formula was at 
once accepted by theologians of all schools as an ac- 
curate and conyenient statement of what they all 
held. Let us take a few examples. Michael Salon^ 
a Spanish Augustinian^ published his Controversiae 
de Justitia et Jure in the year 1581, four years after 
the publication of Medina's work. Salon holds with 
Medina " that it is lawful to abandon the more prob- 
able opinion and to follow that which is probable and 
believed to be true, while to follow the more prob- 
able is merely matter of counsel." He adds that this 
is the opinion of " many and very eminent Doctors, 
especially among the followers of St. Thomas; that 
more numerous and more eminent authors and more 
weighty reasons can be quoted for it than for the op- 
posite opinion; and that these reasons cannot be re- 
futed, while those on the other side can be refuted." ^ 

Gabriel Vasquez, the first Jesuit theologian who 
wrote at length on the question, published his Com' 
mentarii ac DisptUationes in Primam Seoundae S. 
Thomae in 1599, one year after the publication of 
Hall's book. Vasquez says: "I think the opinion 
is true which Bartholomew Medina follows, and 
which was already common in the schools and long 
before his time, viz., that a man of learning may act 
on the opinion of others although that opinion is less 
safe and in his judgment less probable (provided that 
it be not destitute of reason and probability) against 

s Quest 68» a. 2, controv. 2, conclus. 4. 



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400 ^ FORQOTTEy THEOLOQIAJi 

his own opinion which he considers to be more prob- 
able.^' « 

John Azor^ S. J.^ published the first volume of his 
Institutiones Morales in the year 1600. He gives the 
common rules in vogue at the time for the choice of 
opinions; they are identical with those which have 
been given above as quoted by Dr. Hall from Navar- 
rus. Incidentally he mentions the formula of Prob- 
abilism^ and says that although authors have not 
taught it, yet it can be defended by this conclusive 
argument : " Because that is well done which is done 
prudently; but one who is guided by the advice of 
others acts prudently; and therefore one who in his 
actions follows a probable opinion of Doctors acts 
prudently.^' ^ 

These theologians whom we have quoted are merely 
specimens of great numbers of all schools who might 
be mentioned. With the solitary exception of the 
Jesuit Comitolus, we have to wait for another forty 
years before a dissentient voice is raised against 
Probabilism. Comitolus, an Italian theologian, pub- 
lished his Responsa Moralia in 1608. He brands 
Probabilism as the shameful lapse of Armilla, who, 
this writer asserts, taught it in his Summa, while 
other representative authors are quoted as upholders 
of Probabiliorism.® With this solitary and not very 
weighty exception Probabilism wias the universally 
accepted theory of Moral Theology at least from the 
time of the publication of Medina's book till the rise 
of Jansenism in the middle of the seventeenth cen- 
tury. This historical fact of itself is very significant, 

« Dlsp. 62, c. 4. T Lib. 2, c. 16. « Lib. 6, q. 15. 



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A FORGOTTEN THEOLOOIAN 401 

and it will have the greatest weight with those who 
are acquainted with the conservative instincts and 
the quickness to detect novelties which have always 
been characteristic of theologians. Furthermore, it 
is the simple fact that in practice the rule of Prob- 
abilism when applied to the solution of disputed ques- 
tions made no difference in ethical doctrine. The 
laxity of some authors who abused the theory should 
not be attributed to sound Probabilism. It is merely 
a universal formula applicable in all disputed ques- 
tions of right and wrong, and therefore a convenient 
substitute for the many and diverse rules which were 
in use before Medina's time. The practical solutions 
of ethical questions remained the same, though they 
were arrived at by a different and more simple proc- 
ess after the introduction of Probabilism. This will 
be more clear if we continue the last extract from 
Dr. Hall where we left off. He continues thus : 

The same author, Navarrus, gave four very useful rules 
for the use of those who make choice of one opinion out 
of many. First, that a judge, counselor or agent, who is 
going to judge, advise, or do an3rthing in a doubtful matter, 
before doing it, should, to avoid sin, forthwith drive that 
doubt out of his mind, and believe or hold for certain that 
the opinion which he chooses is true; and that he ought to 
judge according to it in that case ; because if before doing 
it he judged what he advised or did to be doubtfully rights 
he would commit sin by exposing himself to danger of a 
doubtful conscience. Secondly, he remarks this, that in 
both the tribunal of justice and of conscience, one and the 
same man, in one and the same matter, both may and ought 
to believe something to be true under one respect for one 
reason, and the contrary to be true under another respect 
for another reason. As, for example, a woman may and 



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402 ^ FORGOTTEN THEOLOOIAN 

ought sometimes to believe that the man with whom she 
lives is her husband with regard to rendering to him his 
marital rights, but the contrary when there is question of 
demanding them for herself. Thirdly, that although in a 
court of law, the rules which we borrowed from Navarrus 
are to be applied, yet in the forum of conscience to avoid 
sin it is sufficient to choose as true the opinion of one whom 
we deservedly consider to be a man endowed with the 
knowledge and uprightness necessary to form a sound opin- 
ion. For, he says, the right understanding of the common 
saying — ^''The safer opinion must be chosen in doubt'' — 
is that it is applicable only in negative doubt, which does 
not exist when a view is held with sufficient authority and 
reason, nor when one opinion is chosen as true out of many. 
Fourthly, that an opinion is not to be called common so 
as necessarily to be preferred to another on the sole ground 
that many follow it like sheep one after another, for in this 
respect, he says, I should consider that to be the more com- 
mon opinion which six or seven classical authors defend 
and who professedly treat of the matter, than an opinion 
approved by fifty who were almost entirely led by the 
authority of others. He even thinks that both opinions 
may be said to be common when each is defended by eight 
or ten authors of weight who choose it deliberately.* 

Prierias tells us in his Summa that theologians 
were unanimous in teaching that in doubtful matters 
where DoctorB disagreed a man might safely follow 
the opinion of his own Master. " And this/' he says, 
"you are to understand not only of one who does 
his best to get at the truth, for such a one would be 
excused on account of invincible ignorance even if he 
embraced a manifestly false opinion ; but you are also 
to understand it of one who from a liking for his own 
Master forms a probable judgment, as it seems to 
him that what is false is true." 

©Lib. 3, c. 16. 



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A FORGOTTEtf THEOLOGIAN 403 

Although some Doctors distinguished and put cer- 
tain limitations, still it was commonly admitted that 
a confessor not only might, but was obliged to, ab- 
solve a penitent who wished to follow a probable 
opinion, although the confessor was convinced that 
the opinion was less probable and less safe than the 
opposite opinion which he held himself. 

Men who had been taught and who had acted upon 
such opinions as the foregoing would accept the 
formula of Probabilism as a matter of course. They 
were accustomed to the idea that it was lawful to fol- 
low a probable opinion even though the opposite 
might be objectively more probable and supported by 
greater authorities and better reasons. A confessor 
was obliged to give absolution to a penitent who 
wished to act on a probable opinion, though the con- 
fessor believed that it was less probable than the op- 
posite which he held himself. In other words, he was 
compelled in this case to follow a probable opinion of 
another against his own more probable opinion. The 
only step that remained to be taken was to show that 
logically one might always follow a soundly prob- 
able opinion even though recognizing at the same 
time that the opposite was more probable. Theolo- 
gians who wrote before the time of Medina had not 
admitted this. The doctrine that in order to act law- 
fully one must have a certain conscience and no doubt 
about the lawfulness of the action stood in the way. 
A man who chooses what he considers to be a less 
probable opinion exposes himself to the danger of 
sin, they said; his conscience fluctuates and is un- 
certain, and so he commits sin. Where there is dan- 



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404 -A FORGOTTEN THEOLOGIAN 

ger on both sides we must choose that on which there 
is less. Moreover, rules of law prescribe that in 
doubt the safer way must be chosen, and what is un- 
certain must be abandoned. Besides, a judge would 
certainly do wrong who gave sentence against a liti- 
gant who had more probable arguments on his side 
than his adversary had. 

Medina answers these objections and establishes his 
theory of Probabilism by pointing out that one who 
follows a probable opinion exposes himself to no dan- 
ger of committing sin. The opinion in question is ad- 
mittedly probable, that is, it is approved, and so 
there can be no danger of committing sin by following 
it; if there were any such danger, the opinion could 
not be approved as a rule for action, it could not be 
probable. The opposite is more probable and more 
safe, it is true, but we are under no obligation to fol- 
low the safer way; it is sufficient if we follow one 
that is safe. Medina admits that a judge is bound 
to give sentence in favor of the litigant who brings 
the stronger arguments ; Probabilism has nothing to 
do with this case, for here there is no doubt but that 
the litigant has a strict right to sentence being given 
in his favor; but he maintains that when there are two 
opinions about the interpretation of a law the judge 
may follow a probable against a more probable opin- 
ion.^^ 

In this Medina was followed by Salon, Dr. Hall, 
and other theologians, but this last proposition was 
rejected by Vasquez and others, and finally it was 
condemned by Innocent XI, 2 March, 1679. Besides 

10 Loo, cit, Quest. 19, a. 6. 



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A FORGOTTEN THEOLOGIAN 405 

his opinion abont a judge, there was another weak 
point in Medina's exposition of his theory. To the 
argument that one who acts on probable opinion, 
acts with the consciousness that the opposite opinion 
may be true, and so acts in doubt and against his con- 
science, Medina replies: "One who in these cases 
acts against his own opinion, does indeed act against 
a speculative doubt or opinion, but he does not act 
against his conscience, for he is convinced and has 
made up his mind that when there are two probable 
opinions one may follow either indifferently.*' ^^ 

But, it may be asked, what ground has he for being 
certain that he is acting lawfully when he acts accord- 
ing to a probable opinion? Medina virtually replies 
that the certainty rests on his own judgment or on 
the judgment of prudent and good men that there is 
no danger of sin in following the opinion ; that is what 
a probable opinion means. And it is certainly lawful 
to do what there is no danger of sin in doing. The 
maxim that in doubtful matters one may do what 
prudent and learned Doctors judge to be safe was, as 
we have seen, commonly admitted by theologians, and 
in general it is a safe rule of conduct. However, on 
the theoretical side the basis of the maxim is weak. 
We have seen that Medina and other approved au- 
thors misapplied Probabilism to questions of law in 
the external forum. It would be easy to give in- 
stances where scores of approved theologians have 
gone wrong and held untenable opinions. Whence 
one might conclude that an opinion is not necessarily 
probable because it is judged to be so by a number of 

11 Quest 10, a. 6. 



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406 ^ FORGOTTEN THE0L0GIA2f 

prudent, good, and learned men. We might reply 
that, although this is so sometimes, as a rule the 
judgment of good and learned men is correct, and 
therefore is sufficient ground for moral certainty. 
However this may be, modern probabilists prefer 
other methods of forming a certain conscience by 
means of a probable opinion. For this purpose they 
use reflex principles, such as — ^^ A doubtful law does 
not bind/' Virtually the process takes some such 
form as this : When there is a probable opinion that 
a particular action is lawful, there is no certain law 
which forbids it; such a law is at most doubtful. 
But a doubtful law cannot impose a certain obliga- 
tion, or in other words a doubtful law does not bind. 
This is one of the favorite arguments of St. Al- 
phonsus. 

In his method of forming a certain conscience by 
means of a probable opinion Dr. Hall follows Medina 
and other theologians of his time. In the ninth chap- 
ter of the second book from which we quoted above, 
he argues as follows : 

As to what some say, that a man would expose himself 
to the danger of committing sin by following a probable 
opinion and abandoning one that is more probable, this we 
deny absolutely, seeing that in doing this learned men see 
no danger of sin. In doubts, indeed, the safer opinion must 
be followed, because there is danger on both sides; but 
when one opinion is probable and another more probable, 
both are safe in morals, though the latter may be safer. 
And when the canon law says that what is more certain 
must be followed in case of doubt, it supposes that there 
is danger on both sides; and this we maintain is by no 
means th^ case when there are two opinions of which one 



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A FORGOTTEN THEOLOGIAN 407 

is probable though the other is more probable. The reason 
is because in a question of morals not settled for certain 
by Holy Scripture or by the Church, it is safe to follow 
that opinion which one sees approved by a good and wise 
man. Finally, we allow that a judge ought to give sen- 
tence for the party which brings the better proofs of its 
claim, but when there are two opinions in law, of whidr 
one is only probable and the other more probable, he can 
follow the probable opinion, nor need he investigate which 
is the more probable so as necessarily to follow it. 

Vasquez^ the first great Jesuit theologian who 
treated the question ex professo, not only rejected 
this opinion about the judge, as we have seen, but re- 
quired the support of more than one Doctoi^ to make 
it lawful to follow an opinion against one that is 
recognized by the agent as more probable. He also 
required that the opinion should be commonly held 
not to be erroneous, but still to maintain its prob- 
ability, and thus not to be obsolete.^^ 

In both these points Vasquez was followed by the 
great body of Jesuit theologians, and we see how 
true was the remark of the learned Cardinal D'Anni- 
bale that the Jesuits, far from being the inventors of 
Probabilism, were as a matter of fact its moderators. 

u Dlsp. 02, e ^ 



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XXIII 

THE TASK OF LIBERAL THEOLOGY 

The Chnrchmen's Union was inaugurated at the 
Church House^ Westminster, on October 31st, 1898, 
for the advancement of Liberal religious thought. 
The members of the Council of this Union are well- 
known and representative clergymen and laymen be- 
longing to the Church of England. They state that 
among the chief objects of the Union are the follow- 
ing:— 

To maintain the right and duty of the Church to restate 
her belief from time to time as required by the progressive 
revelation of the Holy Spirit. And to give all support 
in their power to those who are honestly and loyally en- 
deavoring to vindicate the truth of Christianity by the 
light of scholarship and research, and while paying due 
regard to continuity, to work for such changes in the formu- 
laries and practices in the Church of England as from 
time to time are made necessary by the needs and knowl- 
edge of the day. 

In furtherance of these objects a Quarterly Review, 
The Liberal Churchman, was started in November, 
1904. The brief prospectus which was issued with 
the Review puts the objects of the Union in still 
clearer light. I transcribe it in its entirety. 

The Liberal Churchman has been established in order to 
widen and develop the religious life of the community 

408 



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THE TASK OF LIBERAL THEOLOGY 409 

by advocating and ventilating the claims and principles of 
liberal religious thought within the Church of England 
and among English-speaking people as a whole. The ob- 
ject of liberal religious thought is to emancipate the Chris> 
tian religion from a rigid subservience to the literal forms 
and theories in which it has been historically expressed and 
explained ; and to re-express and explain the essential facts 
of the Christian faith in the terms of contemporary thought. 
There is no dislike to the principle of doctrinal forms ; but 
there is a dislike to the assumption that doctrinal forms 
which were coined in bygone ages under a totally different 
set of ecclesiastical, social, and mental conditions are, and 
must always be, the best and the only forms for commend- 
ing the Christian conception of life to the mind and con- 
science of the present time. The religious, moral, and 
intellectual temper of the modem Christian community has 
outgrown many of these forms ; it does not find itself ade- 
quately expressed in them, and it is becoming more and 
more impatient of the rigid subservience which it is too 
often asked to accord to them by the official exponents of 
the Christian creed. It is hoped that the objects of The 
Liberal Churchman will commend themselves to those who 
feel that the traditional presentation of Christian truth is 
no longer adapted to meet the intellectual, ethical, and 
religious needs of the modem mind. 

In the opening article of the Review, Dr. Morrison, 
the President of the Union, explains its object at 
greater length, and under the title — The Task of 
Liberal Theology , develops what is said in the pros- 
pectus. 

This clearly defined object of the Churchmen's 
Union has the sympathy of many earnest and intelli- 
gent men of our time. Thus, Mr. W. A. Pickard- 
Cambridge begins an article in the Hibbert Journal 
for January, 1905, with this sentence: — 



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410 THE TASK OF LIBERAL THEOLOGY 

Most open-minded laymen probably view with unquali- 
fied satisfaction the desire recently evinced on the part of 
the more progressive clergy of the Established Church to 
restate upon a basis of rational criticism the received dog- 
mas of Christianity.^ 

Sir Oliver Lodge has more than once of late tried 
his hand at a restatement or re-interpretation of 
Christian doctrine. The following is the first para- 
graph of an article by this distinguished scientist in 
the Hihhert Journal for April, 1904, entitled, Sugges- 
tions towards the re4nterpretation of Christian Doc- 
trine. 

Now that religion is becoming so much more real, is 
being bom again in the spirit of modem criticism and sci- 
entific knowledge, may it not be well to ask whether the 
formal statement of some of the doctrines which we have 
inherited from medieval and still earlier times cannot be 
wisely and inoffensively modified! There is usually some 
sort of forced sense in which almost any statement can be 
judged to have in" it an element of truth, especially a state- 
ment which embodies the beliefs of many generations. 
But when the element of truth is quite other than had been 
supposed, and when the original statement has to be tor- 
tured in order to display it, it may be time to consider 
whether without harm its mode of expression can* be re- 
considered and re-drafted — to the ultimate benefit indeed 
of that religion of truth and clearness which we all seek 
to attain.* 

More than one of the papers read at the Church 
Congress, held last autumn in Liverpool, were con- 
tributions towards the same object of restatement 
and re-interpretation of dogma. 

1 Page 253. 2 Page 461. 



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TUB TASK OF LIBERAL THEOLOGY 411 

This also constitutes one of the main objects which 
Liberal Catholics of our time have in view. Professor 
Mivart in the Nineteenth Century for January, 1900, 
attempted to prove that as a matter of fact, through 
the labors of Catholic theologians in the past, there 
had been a process of gradual restatement of Cath- 
olic doctrine; he concluded his article in these 
words : — 

My aim has been to strengthen Catholicity, and to that 
end I have eniunerated the most striking modifications in 
the belief of Catholics I could find, to show how many and 
great changes the Catholic body can undei^ without in- 
jury to its vitality.* 

Several of Mivart's instances of change of Catholic 
belief in the past certainly belong to matters of faith, 
but he regarded them as mere preludes to still greater 
changes in the future. In explanation of the rea- 
sons why he wrote his article he says : — 

I am convinced that the great changes herein referred 
to are but preludes to far greater changes in the future — 
changes which will be most salutary, if duly foreseen and 
prepared for. They will take place surely sooner or later, 
as a new generation of mankind is sure anyhow to succeed 
the present one. But just as the certainty of that fact 
does not make the function of the accoucheur less useful, 
so the sure advent of new conceptions and beliefs does not 
render useless the work of those who would prepare for 
and facilitate their safe delivery into the world of ideas.^ 

And so Mivart's object was to facilitate the re- 
statementiand re-interpretation of Catholic dogma by 

• Page 72. 4/6., p. 71. 



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412 THE TASK OF LIBERAL THEOLOGY 

showing how in his view of history the process had 
been continually going on in the past 

Similarly the writer or writers who under the 
pseudonym Voces Catholiow wrote on the Abb6 Loisy 
and the Catholic Reform Movement in the Gontem- 
pora/ry Review for March^ 1903, claim as the chief 
merit of the French exegete the successful restate- 
ment by him of worn out Catholic beliefs in the terms 
of modern historical criticism. 

On one side, they write, are the formulas, avowedly 
drawn up for our intellect, yet shaped by old-world men 
whose mental equipment, so far as it was dependent upon 
acquired knowledge, was utterly unlike our own; and on 
the other side is the modem scientific spirit pressing vio- 
lently against the barriers raised by those formulas and 
panting for an outlet into the region of light and life. 
M. Loisy claims to have found an issue which leads not 
beyond the pale of Catholic faith, but only to its calm and 
salubrious heights. Placing the definitions of Coimcils and 
Popes in the full light of historic experience he virtually 
says: We owe to them the same degree of respect and 
credence which we display to the words of the Saviour; 
and this we can continue to pay without refusing to science 
what is admitted to be her due. If the course of events, 
against which it is folly to argue, compels us to deepen, 
to spiritualize the words of Jesus which the Church for 
ages construed literally, and if we can — ^because we must — 
carry out the process without failing in our duty to God 
or our neighbor, what is there to show that the dogmas 
fashioned by men are less plastic f It is impossible to re- 
but the argument — ^which is but one of many — and it would 
be suicidal arbitrarily to condemn the conclusion without 
first providing some other means of adapting a structure 
built by the ancients to the wholly different needs of a new 
generation. 



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THE TASK OF LIBERAL THEOLOGY 413 

Long before M. Loisy came forward critics had eagerly 
thrown themselves upon salient facts in Church history; 
which, turn them how one might, would not dovetail with 
the dangerous claim to immutability advanced by certain 
theologians for the dogmas of the Church. Exposed to the 
fierce light of science, which they were never meant to 
endure, many of those old-world propositions seemed to 
shrivel up and harden, to the grave detriment of their 
religious contents. The French theologian is the first to 
show how by reverently approaching the formulas of past 
ages, which were admirable presentments of Christian doc- 
trine as reflected in the minds of Christians of those 
generations, we can take over the fundamental and com- 
prehensive truths which they embodied, without vainly 
straining to view them from a standing point which has 
receded from us forever. Far from loosening our hold on 
the substance of Jesus' teachings, this needful process of 
spiritualization imparts to them a firm cohesion and har- 
monizes them with ideas of a scientific order from which 
it is impossible to withhold our assent.*^ 

In spite of what this writer says about the claim of 
Loisy to be a pioneer in the field of the re-interpreta- 
tion of dogma, it is well known that he took this idea 
with much else from the French Protestant minister, 
A. Sabatier. Indeed, A. Sabatier seems to have been 
the common source from which English Protestants 
and liberal Catholics alike have largely drawn. For 
many years Sabatier was tie recognized leader of 
a certain school of theology in France, and the Abb6 
Loisy is said to have attended his lectures in Paris. 
A very slight acquaintance with Sabatier's writings 
will convince the reader of the justice of his claim to 
have led the way in the restatement of Christian dog- 

B Pases 401-402. 



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414 THB TASK OF LIBERAL THEOLOGY 

ma. I need do no more here than give a short extract 
from an article which he contributed to the Cotir 
temporary Review for November, 1899, on Christian 
Dogma and the Christian LAfe. 

Hence it becomes an incontestable truth that no theo- 
logian of our day repeats and professes the dogmas of the 
great councils in the same sense they had for those who 
saw their birth or origin. Every one accommodates them, 
more or less consciously, to his own use, translates them 
into his language, takes or leaves portions as it pleases 
him; in a word, re-thinks them in his mind, and in re- 
thinking them, interprets and transforms them! Well, 
modem theology invites us simply to do with reflexion and 
truthfulness that which we all do more or less and which 
we cannot help doing. And do we not see that far from 
being the death of dogma, this faculty of transformation 
by a new exegesis is the only way by which dogma can be 
rejuvenated and revived, the only way for us to reap its 
internal or spiritual substance, the Christian reality by 
which our religious life can and ought to be nourished t 
Shall we hesitate resolutely to enter on this patht^ 

In another passage of their article in the Contemn 
porary Review for March, 1903, Voces Catholicte 
admit that Loisy is not original. 

Most of the fruitful ideas [they write] with which his 
little volume teems have been in the air for some years 
past They cannot, therefore, be said to be original. But 
they have been uttered by non-Catholic critics whose writ- 
ings and names have remained hitherto unknown to the 
bulk of our co-religionists. 

Any reader of Loisy who knows how constantly he 
refers to Protestant theologians and rationalistic 
•Page 787. 



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TES TASK OF LIBERAL THEOLOGY 415 

criticB will corpoborate this testimony that his views 
are not original. In this instance^ as in so many 
others, the views of liberal Catholics are seen to be a 
more or less close approximation to those of heretics 
and rationalists. Since the condemnation of Loin's 
works by the Holy See there has been a lull in the 
activity of liberal Catholics, and the present seems to 
be a favorable opportunity for reviewing our posi- 
tion. Let us try to gain a clear idea of the crisis of 
Liberalism through which we have been passing. The 
process cannot fail to be useful to us. 

And first of all let us pay a tribute to thfe vigilance 
of our bishops who betimes perceived the danger and 
faithfully fulfilled their office. In their joint Pas- 
toral of 29th December, 1900, they say, after quoting 
the teaching of Leo XIII : — 

Very diflPerent from this is the theory of progress or 
development excogitated in recent times, and approved by 
certain writers on the continent, and even in England. 
They make the progress of Christian doctrine to consist in 
real change. They argue that certain truths of revelation 
may become obsolete and die out ; that, having served their 
time, higher truths will supplant them, in accordance with 
some real or fancied progress of natural science. They 
even suggest that higher perceptions in natural science will 
reduce mysteries to the level of natural phenomena; and 
that the development of Christian doctrine really means 
the reception into the deposit of faith of a number of 
extraneous truths, which will in course of time bring the 
Church into perfect conformity with modem ideas. There 
are even Catiiolics who imagine that they can save their 
orthodoxy by holding the creeds and definitions of faith, 
not according to the Church's constant understanding of 
them, but according to their own. They profess to believe 



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416 THE TASK OF LIBERAL THEOLOGY 

that the Church's teaching may receive new light to illumi- 
nate it, so that the traditional sense, given by the Church 
to her formularies, shall give way to other meanings par- 
tially or wholly different. Against errors of this kind the 
Church, in the Vatican Council, has launched her formal 
anathema: '*If any one shall say that it may ever be 
possible, with the progress of science, for a sense to be 
given to the doctrines proposed by the Church, other than 
that which the Church has understood and understands, 
let him be anathema." 

So that the task which liberal theology sets itself 
is heretical, and this new heresy differs fundamen- 
tally in nothing from former heresies. Men im- 
bued with modern subjective phenomenalism and the 
theories of evolution wish to apply their philosophi- 
cal opinions to the interpretation of the doctrines of 
the Christian faith. This is precisely what St Paul 
warned the Colossians against (ii. 8): "Beware, 
lest any man cheat you by philosophy and vain de- 
ceit; according to the tradition of men, according to 
the elements of the world, and not according to 
Christ" 

A long catena of passages from the Fathers might 
be quoted to show the practice of heretics in all ages. 
One or two will be sufficient for my purpose. St 
Athanasius writes : — 

After adopting some impious principle as a canon, in 
accordance with this principle they proceed to corrupt all 
the sacred Scriptures.^ 

Faustinus in his treatise De Fide against the 
Arians (circ. 380) writes: — 

T Orat ii, p. 176. 



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THE TASK OF LIBERAL THEOLOGY 417 

The Arian heresy when it makes its profession of faith 
confesses much in the same words indeed as we do but not 
in the same sense. For in the same words as we do, it 
proclaims God the Father and God the Son, and that by 
the Son all things were made by God the Father, and that 
the Son was begotten before time was. But although it 
agrees with us in using these words, nevertheless, by a 
sacrilegious interpretation of them it departs from the 
orthodox sense of the Catholic Church, calling God Father, 
but not in the sense that He begot the Son; making use 
of the word Son also, but meaning Son by adoption not by 
nature, in the sense that He was reckoned as such, not 
really begotten by the Father.® 

One is tempted to wonder how Catholic priests 
and intelligent Catholic laymen could possibly sup- 
pose that the proposed restatement of Catholic dogma 
does not "lead beyond the pale of Catholic faith.'^ 
That the dogmas of the Faith are immutable, that all 
Catholics are bound to believe Quod semper, quod 
uhique, quod ah omnibus; that in matters of faith 
'Nil innovetur, nisi quod traditum est; Non nova, sed 
nove; Explodenda novitas, retinenda antiquitas; this 
belongs to the very rudiments of Catholic doctrine. 
The Catholic Church has always claimed to teach 
what she received from the apostles, that it is which 
constitutes the sacred deposit committed to her faith- 
ful keeping; if her claim is unfounded, if while pro- 
fessing to teach with divine authority the immutable 
divine truth entrusted to her keeping, she has all the 
while been stealthily accommodating and changing 
it to suit the fashions of the day, then is she indeed an 
impostor, her stupendous claims make her ridiculous, 

« Migne PP. Lat xllL, p. 38. 



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418 THE TASK OF LIBERAL THEOLOGY 

and the sooner she is shoveled out of the way the bet- 
ter. 

But^ say the liberal Catholics, there is no use ar- 
guing against facts, it is a fact that changes in dogma 
have taken place in the past, why should they not 
take place in the future? 

This, of course, is the common Protestant and ra- 
tionalistic objection against the immutability of Cath- 
olic dogma ; if the liberal Catholic were as well read 
in the Catholic theology as in modem infidel litera- 
ture, he would know how to answer the difficulty. 

But, persists the liberal Catholic, in spite of the 
traditional answer of Catholic theologians to the diffi- 
culty — and here it is usual for him to introduce a 
sneer at scholasticism — it remains true that Catholic 
dogma has changed; E pwr si muove, as in a not 
dissimilar context asserted Galileo, that venerable 
confessor of the Faith, as Mivart called him. 

One of the classical instances by which Loisy 
strives to show this, is the transition from the concep- 
tion of the kingdom of God, as preached by the liv- 
ing Jesus, to that of the Catholic Church, brought 
about after the Resurrection of Our Lord. Loisy 
adopts the modem rationalistic view, according to 
which the Christ of history merely conceived of Him- 
self as the Messias whom the Jews were expecting, 
whose office it was to preach repentance and thereby 
the forgiveness of sin, as the preparation for the im- 
mediate advent of His earthly but glorious kingdom. 
In the mind of Jesus there was no place and no need 
for the Christian Church, and He can only be said to 
be its founder inasmuch as He unwittingly sowed the 



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THE TASK OF LIBERAL THEOLOGY 419 

seed from which the Church grew by the thought, 
labor, and adaptation of St. Paul and other great 
thinkers of the first two centuries of the Christian 
era. Then, of course, follows the conclusion — if 
there could be such restatement and re-interpretation 
of dogma in the first ages of Christianity, why should 
the process not continue on similar lines? 

In answer to this I will quote the recent utterances 
of two non-Catholic writers. Mr. W. H. Mallock 
wrote in the Nineteenth Century for December, 
1904: — 

I will not pause to ask why that subjective experience, 
which was of no value in attesting the superhuman nature 
of Buddha, should be accepted as indubitable evidence of 
the superhuman nature of Christ. . . . Nor does what I 
am going to say apply to neo- Anglicans only. It applies 
equally to men like Professors Hamack and Sabatier, and 
to liberal Catholics, such as the Abb6 Loisy and Baron 
F. von Hiigel. All these thinkers have come to the same 
conclusion, that if principles like the Bishop of Worcester's 
are to be applied to the interpretation of the Qospels, our 
conception of the divine character of Christ must, in one 
respect at all events, undergo a profound change. We can 
no longer regard His incarnation of the Qodhead as com- 
plete. We must regard Him, says the Bishop of Worces- 
ter, as ''having refrained from the divine mode of 
consciousness" to such an extent that His knowledge, in 
many respects, was no better than an ignorant man's. I 
do not know how far the Bishop may realize the scope of 
this admission ; but, as other thinkers have shown, who are 
no less devout than he, it compels us to recognize that 
Christ was not only ignorant of many things, but was actu- 
ally subject to very serious delusions— chief amongst these 
being the delusion that His own second coming would be 
immediate. Such being the case, as Baron F. von Hiigel 



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420 THE TASK OF LIBERAL THEOLOGY 

observes, the question has to be faced of how, nnder these 
conditions, Christ could have had any intention of found- 
ing an earthly Church.* 

The Rev. Professor James Denney, of Glasgow, 
writes in- the February number of the Expositor^ 
1905: — 

He (Loisy) holds with that recent school of New Testa- 
ment scholarship which lays the whole stress in the Gk)spels 
on the eschatological representation of the Kingdom. He 
rejects, unceremoniously, the idea that not what Jesus in- 
herited is of value in Christianity, but only what is His 
own ; nothing was more truly His own, nothing had greater 
value to Him than what He had inherited — ^the ancient 
revelation and the hopes it had inspired. He gets rid of 
the texts on which Hamack bases his spiritual conception 
of Christianity by methods which some will describe as 
exegetical and critical, others as the unscrupulous use of 
the rack and the knife. Perhaps it is enough to say that 
they are quite unconvincing.^*^ 

In other words this crucial instance of the apos- 
tolic restatement of Christian dogma, this undoubted 
result of modem criticism, this certain conclusion 
arrived at by the scientific historical method, is at 
best the opinion of a particular school of rational- 
istic scholars, arrived at by denying the authenticity 
of some texts in our authorities, by torturing others 
out of their obvious meaning, and by putting aside as 
unhistorical all supernatural phenomena like prophe- 
cies and miracles. 

Again ; in this question of the development of doc- 
trine, it is all important to distinguish between what 

9 Page 920. lo Page 115. 



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THE TASK OF LIBERAL THEOLOGY 421 

is of faith and what is merely theological speculation 
about the faith. And yet Mivart, in the article from 
which I quoted above, rides roughshod over this all 
important distinction. 

As I am no theologian, he says, I cannot xmdertake the 
responsibility of defining what beliefs are, and what are 
not, de fide. To attempt to do that would, in the words 
of a learned Divine, only give rise to endless discussions. 
It is enough for me that a belief has been generally enter- 
tained, in order that I should include it within the scope of 
this article; for, as it seems to me, whatever has been 
so accepted, authority must have practically sanctioned, 
taught, or tolerated, at some time or other.*^ 

A very remarkable confession of ignorance, which, 
if he had only known it, made him utterly incom- 
petent to deal with so technical a subject. 

The dassical instance in this connection is the old 
belief that the earth was the stable center of the 
universe. Thus Mr. Mallock in the Nineteenth Cen- 
tury for December, 1904, writes : — 

As Archdeacon Wilberforce has pointed out, in a pas- 
sage already quoted by me, the probability of the Ascension, 
and even its meaning, depended on, and have passed away 
with, the old geocentric astronomy." 

Voces Catholics, in the article in the Contem- 
porary referred to above, quote the following from 
Loisy: — 

The Church still daily repeats in the Symbd of the 
Apostles: He descended into Hell; He ascended into 
Heaven. For long ages these propositions have been taken 

" Page 64. 12 Page 919. 



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422 THE TASK OF LIBERAL THEOLOGY 

literally. Oeneration after generation of Christians be- 
lieved that hell, the sojourn of the damned, was underneath 
their feet, and that heaven, the abode of the elect, was 
above their heads. . . . Can it be laid down — in view of 
the transformation undergone by the apparent meaning of 
the formulas — that the theology of the future will not work 
out for itself an idea still more spiritual of their con- 
tents." 

The contention then is that for centuries Chris- 
tians held as a dogma of faith, contained in the dogma 
of the Ascension, that heaven was situated above the 
spheres by which, according to the old astronomy, the 
earth was surrounded. This may have been the 
teaching of some theologians for anything that I 
know, but it certainly was never the teaching of the 
Church. To show that the Fathers and scholastic 
theologians were quite aware of the importance of 
distinguishing between what is of faith in such a 
question and what is merely scientific theory, it will 
be sufficient to quote a passage from Suarez, who, 
after giving the received theological explanation of 
the Ascension according to the old astronomy, adds 
the following noteworthy words : — 

Hanc vero disputationem Augustini verbis concludamus, 
qui in libro de Fide et Symbolo c. 6 sic inquit : Credimus 
in coelum ascendisse ; sed ubi et quomodo sit in coelo corpus 
Dominicum curiosissimum et snpervacaneum est quaerere, 
iantummodo in coelo esse credendum est. Non enim est 
fragilitatis nostra, coelorum secrets discutere: sed est 
nostr» fidei de Dominici corporis dignitate sublimia et 
honesta sapere." 

18 Page 899. 

14 De Incamatioiie, dlsp. 51, sec. 1. 



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THE TASK OF LIBERAL THBOLOOY 428 

So that the dogma of the Ascension is not ^ected 
by the geocentric or heliocentric or any other astro- 
nomical theory; scientific theory merely affects the 
theological explanation of the dogma, which, of 
course, may vary ; and this the Fathers and schoolmen 
knew just as well as we do. 

The professed intention of liberal GathoUcs to in* 
terpret the faith in terms of modem scientific thought, 
and thus to make it more intelligible and more ac- 
ceptable to educated minds of our time, is in itself 
legitimate and praiseworthy. But in executing this 
intention great care and an accurate knowledge not 
only of modem thought but of theology is absolutely 
required. Otherwise the result will be not Christian 
doctrine expressed in terms of modem thought, but 
something quite different The attempts in this di- 
rection which haye hitherto been made by liberal 
Catholics do not inspire one with a great idea of their 
theological equipment Some of them, indeed, like 
Miyart, seem to glory in their ignorance of theology. 

Furthermore, modern thought is a yery complex 
phenomenon, it is something yery much more than 
the belief in the heliocentric theory in astronomy. 
Experts loudly proclaim that the condition of mod- 
em philosophy is chaotic, and if one wished to try 
his hand at interpreting Christian doctrine in terms 
of some modem philosophy, there would be a large 
assortment for him to choose from. Loisy being, as 
he confesses, no philosopher, followed Sabatier in 
choosing Eantism as his yehicle for the restatement 
of Christiaxi dogma. The choice was unfortunate. 
It Kant's philosophy had been the final explanation 



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424 THE TABK OF LIBERAL THEOLOGY 

of the world and of the nature of man, if it had even 
been a substantially true Efystem of thought, some- 
thing might haye been said for the choice. This is 
notoriously not the case. As E. Caird, the Master 
of Balliol Ck)llege, Oxford, and one of the chief au- 
thorities on Kant in this country, says in the Quar- 
terly Review for October last: — 

He (Kant) did not formulate a self-consistent system 
which any one could now accept ; his whole philosophy may 
rather be regarded as a pathway of transition between two 
disparate views of the world and of man's place in it^ 

Some wit is reported to haye said that good Ger- 
man philosophies go to Oxford when they die; are 
liberal Catholics going to giye them a third lease of 
life when they die at Oxford? 

Loisy's attempt to interpret Christian dogma in 
terms of the Kantian philosophy has ended in fail- 
ure. The result is something which is certainly not 
Christian doctrine. This is yery well brought out by 
the Bey. Professor Denney in the article from which 
I quoted above. He says : — 

In order to subsist in the world at all Christianily had 
to become (according to Loicfy) all that we see it to be. It 
had to develop dogmas, rites, institutions, devotions, disci- 
plines; if it had not done so, it would have ceased to exist. 
Not the Church but Chrisiiwnity would have ceased to 
exist When it entered into the great world, the great 
world entered into it: why nott When people became 
Christians they brought their minds into Christianity, their 
habits of thought, to some extent their former modes of 
worship : and again Loisy would ask, why nott The point 
to remember is that there is no finaUiy here; it is a proty- 

uPage 436. 



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THE TASK OF LIBERAL TBEOLOQY 425 

ess which is going on before onr eyes, and it is not to be 
judged as a final resvli; its legitimacy merely turns on 
the question whether the process is one in which the ele- 
ment of Christian tradition keeps a determining place, so 
that through the process men are really kept in communi- 
cation with Christ. . . . But the seriousness of the situa- 
tion appears when we ask what kind of legitimation the 
Church with its rites, dogmas, and discipline, obtains in 
this wayt It is a purely historical legitimation. It has 
a right to be, because it is there ; but it is there only because 
it is in motion, only because it is passing away. There is 
no such thing in it as an immutable dogma, or a constitu- 
tion or a ritual which has divine right, and therefore can 
never be changed. Christology, the doctrine of grace, the 
doctrine of the Church and the sacraments, all alike come 
under this law. They have a historical legitimacy, but it 
is only historical ; their right to be can be frankly acknowl- 
edged because it is only a relative right, and implies the 
obligation sooner or later to cease to be. . . . The point of 
living interest in Loisy's conception is that which is sug- 
gested by the words quoted above — ^''the absolute character 
which dogma derives from its source, divine revelation." 
One's first impression is that in the name of history Loicfy 
refuses to think about the absolute at all. To put it para- 
doxically, the only absolute he acknowledges is the absolute 
relativity of everything which has taken or can take a real 
place in history. Absolute and historical form a contra- 
diction in terms. When Harnack speaks of the essence of 
Christianity as something independent of time and en- 
vironment, or uses phrases like absolute religion, absolute 
Christianity, Loisy puts them ironically aside as describing 
entities that are not very likely to be found in history. 
Yet the absolute relativity of everything in history seems 
to leave us without any criterion whatever, either of Chris- 
tianity or of truth; everything both is and is not, and 
whatever we can build on this basis it is not religion.^* 
!• Pages 10&-111. 



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426 THB TASK OF LIBERAL TEEOLOQY 

A little further on Prof eesor Denney adds : — 

Even the Christology of Jesus has for M. Loisy no 
finality. You cannot go back to A. D. 29 or 30, and lift 
Christianity just as it was, and carry it across the centuries 
unchanged, and set it down in A. D. 1905 ; in A. D. 29 the 
mind of Christ about Himself and the Kingdom of Qod 
was a mind adapted to the time, and it has been in process 
of adaptation to succeeding times ever since. This is what 
legitimates, not any given Christology for all time, but all 
Christologies each for its own time; not any doctrine of 
the Church or of the Christian hope as an eternal truth, 
but all doctrines of the Church and all eschatologies which 
have appeared in Christian history, each for the period 
whose faith has produced it.^^ 

This is well and clearly put by a not unsympa- 
thetic writer, and it shows that Loisy's attempt to in- 
terpret Christianity in terms of the doctrines of 
relativity and evolution is incompatible with the 
claim of the Church that she teaches the doctrine of 
Jesus Christ 

One with a competent knowledge of theology who 
desires to present that theology to the world in a form 
suited to the modem mind, must be imbued, if he 
would be successful, with a spirit of loyalty and de- 
votion to the Holy See. There he will look for indi- 
cations of the mind of the Church, who is ever being 
guided into all truth by the Holy Spirit Himself. 
Liberal Catholics are notoriously defiieient in this 
spirit of loyalty and devotion to the Holy See, and 
this alone prevents us from expecting any solid re- 
sults from their unbounded activity in the realm of 
theology. 

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